author:
BURKE, Judge.
      JOINER, Judge,

text:
    J.D.I. v. STATE of Alabama.
    CR-10-0534.
    Court of Criminal Appeals of Alabama.
    July 8, 2011.

      Samantha Burt, Opelika, for appellant.
    Luther Strange, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.
   BURKE, Judge.

The appellant, J.D.I., pleaded guilty as a youthful offender to one count of obstructing justice by using a false identity, a violation of § 13A-8-194, Ala.Code 1975. He was sentenced to two years’ imprisonment; that sentence was suspended, and he was ordered to serve one year of supervised probation.

The evidence established that on July 26, 2010, Montgomery Police Officer Lonnie Barnes was on routine patrol in the Dalraida area of Montgomery when he passed a vehicle being driven by J.D.I. Officer Barnes noted that there was a large crack in the windshield running from below the tint line all the way across the windshield diagonally. Officer Barnes testified that he believed that the crack could potentially obstruct J.D.I.’s vision, depending on how he was positioned in the driver’s seat. He also testified that he routinely stopped cars with cracked windshields to advise the drivers of the potential safety issues; he noted that a cracked windshield could easily shatter. Officer Barnes conducted a traffic stop to warn J.D.I. of the potential dangers involved in operating a motor vehicle with a cracked windshield.

Officer Barnes got out of his patrol unit and asked for J.D.I.’s driver’s license and proof of insurance. J.D.I. stated that he did not have a driver’s license. Officer Barnes testified that the traffic stop began to change from that point forward. Officer Barnes asked J.D.I. for his name, but the name he provided was not “on file.” (R. 5.) Officer Barnes then asked J.D.I. for his date of birth; a subsequent check of the database confirmed J.D.I.’s real name and the existence of several outstanding misdemeanor warrants. Officer Barnes was aware of at least one of the outstanding warrants because he had tried to serve the warrant himself. (R. 14.) J.D.I. insisted that the false name he had given to Officer Barnes was, in fact, his real name. Officer Barnes gave J.D.I. an oral warning for the cracked windshield and arrested him.

At the suppression hearing, J.D.I. testified that there was a crack in the windshield that ran diagonally across the windshield. He denied that the crack covered the entire surface of the windshield and denied that the crack obstructed his vision in any way.

Tawanda Thrasher also testified at the suppression hearing. First, she testified that the crack in the windshield extended across the full surface of the windshield, but she denied that it obstructed the driver’s view. She subsequently changed her testimony to state that the crack did not extend over the entire surface of the windshield.

J.D.I. claims that § 32-5-215(a), Ala. Code 1975, which provides that a windshield must be unobstructed, is unconstitutionally vague, and that Officer Barnes’s reliance on § 32-5-215(a), Ala.Code 1975, to justify his traffic stop for the cracked windshield was a mistake of law that could not provide probable cause for the traffic stop that resulted in his arrest.

I.

On appeal, J.D.I. contends that § 32-5-215(a), Ala.Code 1975, is unconstitutionally vague. Specifically, he argues that the statute does not make it a criminal act to drive a vehicle with a cracked windshield.

At the hearing on his motion to suppress, J.D.I. sought to suppress the evidence resulting from the traffic stop. He argued that the statute relied upon by Officer Barnes criminalizes only windshield cracks that obstruct the driver’s view; therefore, because Officer Barnes could not say with certainty that the crack in the windshield obstructed J.D.I.’s view, he should not have been stopped. He argued that because the statute is not phrased conditionally, i.e., “could obstruct the driver’s clear view,” but rather is in the present tense, “obstructs the driver’s clear view,” he did not violate it. Thus, he argued at the hearing, Officer Barnes’s reliance on § 32-5-215(a) to justify the stop of the vehicle J.D.I. was driving was a mistake of law that could not provide reasonable suspicion for the traffic stop that resulted in his arrest. The trial court denied J.D.I.’s motion to suppress, stating:

“I am denying the motion to suppress, [Defense counsel], because the officer had every reason to stop the vehicle. He has testified that the crack went all the way across. He went up there to tell the guy you have a cracked windshield. You know, that is a violation if it obstructs your view, which like you said maybe the court will say that’s not a well-written law. Who knows what obstructs the view means. But we have got what we have got. The officer said it could obstruct his view. He had every reason at that point to say I need to see your driver’s license.
“I agree with y’all. But I am not the one who can make the law about the windshield. That’s got to go down the street. So the appellate courts can tell us. They might agree with you, Richard, and say, yeah, that is a vague law. It is not clear. We need to get rid of that law because I will put on the record we have had a lot of officers lately pulling folks over with cracked windshields. Do they pull everyone over? No. Do they pull you over every time? No. But the point is they are pulling folks over. And we — the courts need some guidance and the police officers need the guidance.”

(R. 39-40.)

Defense counsel argued, “But I just— you know, the law is clear that — it’s clear that it’s got to obstruct.” (R. 40.) The trial court then continued and argued that the statute is unclear and stated that she “want[ed] the [C]ourt [of Criminal Appeals] to go even further and rule on whether someone can just be stopped if we have got just a crack on a passenger side or the muffler example because I would analogize that to just a person walking down the street.” J.D.I. entered a guilty plea to the offense of obstruction of justice, reserving for appeal the issue argued during the hearing.

However, J.D.I. was not convicted of violating § 32-5-215; therefore he lacks standing to challenge its constitutionality.

In Peak v. City of Tuscaloosa, 73 So.3d 5 (Ala.Crim.App.2011), this court analogously stated:

“[B]ecause Peak was never charged with or convicted of violating § 13-51(6) [of the Tuscaloosa Municipal Code], he has no standing to challenge that section. See J.L.N. v. State, 894 So.2d 738, 741 n. 3 (Ala.Crim.App.2002) (‘In addition to challenging § 15-20-26(b), Ala.Code 1975, under which he was indicted, the appellant also appears to argue that §§ 15-20-23, 15-20-25, and 15-20-26(a), (c), and (d), Ala.Code 1975, are unconstitutional. However, he was not charged with violating any of those provisions of the [Community Notification Act]. Therefore, he does not have standing to challenge those provisions, and we will not review his constitutional challenges regarding those provisions.’), rev’d on other grounds, 894 So.2d 751 (Ala.2004); and State v. Wilkerson, 54 Ala.App. 104, 105, 305 So.2d 378, 380 (1974) (‘“As a general rule, in criminal prosecutions, accused has the right to assert the invalidity of the law, regulation, or rule under which he is being prosecuted [but] ... [a]n accused affected by one portion of a statute may not plead the invalidity of another portion of the same statute not applicable to his case ... ” ’ (quoting 16 C.J.S. Constitutional Law § 84)). See also Byrd v. State, 78 So.3d 445 (Ala.Crim.App.2009); and Taylor v. State, 442 So.2d 128 (Ala.Crim.App.1983).”

73 So.3d at 11.

Moreover, J.D.I. did not argue that the statute was unconstitutionally vague; his argument addressed whether the facts of his case fell within the purview of the statute, which prohibits driving a vehicle with an obstructed windshield. He argued that Officer Barnes had not proven that the crack obstructed his view, and he also argued that a crack in the windshield did not constitute a “nontransparent material” as required by the statute. In fact, defense counsel argued that the language of the statute was clear and that his facts did not indicate a violation of the unambiguous terms of the statute.

Therefore, the constitutionality of § 32-5-215, Ala.Code 1975, is not properly before this court.

II.

J.D.I. also argues that the State presented insufficient proof that Officer Barnes had reasonable suspicion to effectuate a traffic stop.

“ ‘[B]ecause a routine traffic stop is a limited form of seizure, it is analogous to an investigative detention, and we have therefore held that a traffic stop will be governed by the standard set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [(1968)].’ J.T.C. v. State, 990 So.2d 444, 447 (Ala.Crim.App.2008).
“ ‘Terry sets up a two-prong test of the reasonableness of investigatory detentions and weapons searches. First, we must decide whether the detention was justified at its inception .... Second, the officer’s actions must be reasonably related in scope to the circumstances which justified the interference in the first place. At both stages, the reasonableness of the officer’s suspicions is judged by an objective standard taking the totality of the circumstances and information available to the officers into account.” United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir.2004) (quotations and citations omitted).’
“United States v. Sanchez, 519 F.3d 1208, 1212-13 (10th Cir.2008).”

State v. Ellis, 71 So.3d 41, 45 (Ala.Crim.App.2010). See State v. Davis, 7 So.3d 468, 470 (Ala.Crim.App.2008) (“ ‘ “Reasonable suspicion is a less demanding standard than probable cause,” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers “have a particularized and objective basis for suspecting the person detained of criminal activity,” Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).’ ”).

J.D.I. contends that because having a cracked windshield on one’s vehicle does not violate any law, Officer Barnes should not have stopped him. The prosecutor and Officer Barnes argued that the cracked windshield violated § 32-5-215, Ala.Code 1975, which states:

“§ 32-5-215. Windshields must be unobstructed; windshield wipers; tinting.
“(a) No person shall drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, sidewings, or side or rear windows of such vehicle which obstructs the driver’s clear view of the highway or any intersecting highway.
“(b) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow, or other moisture from the windshield, which device shall be so constructed as to be controlled or operated by the driver of the vehicle.
“(c) Every windshield wiper upon a motor vehicle shall be maintained in good working order.
“(d) No person shall operate a motor vehicle which has a windshield, sidewing, or rear window which has tinting to the extent or manufactured in such a way that occupants of the vehicle cannot be easily identified or recognized through the sidewing or rear windows from outside the motor vehicle.
“(e) The provisions of this section shall not apply to the manufactured tinting of windshields of motor vehicles or to certificates of identification, decals, or other papers required by law to be displayed on such windshield or windows.”

Although other statutes dealing with the operation and equipment in automobiles include provisions requiring that automotive parts be properly maintained, there is no such provision for the windshield itself. See, e.g., § 32-5-212 (“All such brakes shall be maintained in good working order....”); §32-5-210 (“No person shall operate any vehicle of a type required to be licensed upon the highways of this state ... when one or more of the tires in use on such vehicle is in unsafe operating condition....”); §32-5-213 (“Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order....); § 32-5-216 (“Every motor vehicle shall at all times be equipped with a muffler in good working order_”); § 32-5-215(c) (“Every windshield wiper upon a motor vehicle shall be maintained in good working order.”).

In fact, the legislature appears to accept the possibility of cracks, without condemning them as illegal, by the language of § 32-5-218, which addresses safety glazing in motor vehicles. Section 32-5-218(b) states:

“(b) The term ‘safety glazing materials’ means glazing materials so constructed, treated, or combined with other materials as to reduce substantially, in comparison with ordinary sheet glass or plate glass, the likelihood of injury to persons by objects from exterior sources or by these safety glazing materials when they may be cracked or broken.”

The clear language of § 32-5-215 addresses the obstruction of windshields due to moisture, tinting, and the application of nontransparent materials on the windshield so that the driver’s clear view is obstructed. It is this latter provision that was argued at trial as justifying the stop of J.D.I.’s vehicle. Despite any possible legislative intent, cracks or dings in windshields are not included as improper obstructions within this statute.

“ ‘The touchstone of- legislative construction is to ascertain and effectuate the intent of the legislature as expressed in the statute.’ Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982) (emphasis added). This Court gives effect to the intent of the legislature as expressed in the plain, unambiguous language of the statute. Jefferson County Comm’n v. Edwards, 32 So.3d 572, 586 (Ala.2009).”

Ex parte Catlin, 72 So.3d 606, 607-08 (Ala.2011) (Cobb, C.J., concurring specially).

“It is a well established principle of statutory interpretation that ‘[w]here the meaning of the plain language of the statute is clear, it must be construed according to its plain language.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). ‘Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.’ Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001).
“ ‘ “ ‘[Cjriminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.’ ” United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).
“‘“In United States v. Boston & M. RR Co., 380 U.S. 157, 85 S.Ct. 868, 870, 13 L.Ed.2d 728 (1965), the Supreme Court stated:
“ ‘ “ ‘A criminal statute is to be construed strictly, not loosely. Such are the teachings of our cases from United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37 [(1820)], down to this day. Chief Justice Marshall said in that case:
“ ““ “The rule that penal laws aré to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” Id., p. 95.
“ ‘ “ ‘The fact that a particular activity may be within the same general classification and policy of those covered does not necessarily bring it within the ambit of the criminal prohibition. United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872 [(1918)].’
“ ‘ “Moreover, ‘one “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790 [ (1905) ]. “[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260 [ (1952) ].’ United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971).”
‘Bridges, 493 F.2d at 923.’ ”

Crawford v. State, [Ms. CR-09-1227, April 29, 2011] — So.3d -, -(Ala.Crim.App.2011).

Alabama state law does not prohibit driving a vehicle with a cracked windshield. Thus, Officer Barnes was mistaken as to the law of the State of Alabama. Moreover, the City of Montgomery does not have an ordinance proscribing driving with a cracked windshield, nor does it have an ordinance allowing an officer to stop a vehicle for safety reasons where no law has been violated.

According to § 27-41, Code of Ordinances, City of Montgomery, Alabama:

“It shall be the duty of the traffic division, with such aid as may be rendered by other members of the police department, to enforce the street traffic regulations of this city and all of the state vehicle laws applicable to street traffic in this city, to make arrests for traffic violations, to investigate accidents and to cooperate with the city traffic engineer and other officers of the city in the administration of the traffic laws and in developing ways and means to improve traffic conditions, and to carry out those duties specially imposed upon such division by this chapter and the ordinances of this city.”

Further, pursuant to § 27-45(a), “[i]t shall be the duty of the officers of the police department, or such officers as are assigned by the chief of police, to enforce all street traffic laws of this city and all of the state vehicle laws applicable to street traffic in this city.” There are no specific ordinances related to the equipment on or operational condition of vehicles in the Code of Ordinances, City of Montgomery. Moreover, neither the Alabama Code nor the Montgomery City Code has a general safety law. Cf. State v. Smith, (No. CA2007-05-064, September 2, 2008) (Ohio Dist.Ct.App.2008) (not reported in N.E.2d) (where law prohibited anyone from driving a vehicle that is in such unsafe condition as to endanger someone, the officer’s statement that the spider crack in the windshield was 1 1/2 feet to 2 feet long, and 12 inches wide, presented safety concerns although “Ohio appellate courts disagree as to whether a crack in the windshield of a vehicle justifies a stop?’ under this law. Mn. Op. at 3). United States v. Sandoval, (No. 1:05CR47 DS, October 5, 2005)(D.Utah, Northern Division) (not reported in F.Supp.2d) (crack in windshield that was over 24 inches long was sufficient to establish probable cause for stop as a safety hazard under Utah Traffic Code); Hilton v. State, 961 So.2d 284 (Fla.2007) (holding that “an officer may stop a vehicle for a windshield crack only if the crack poses a safety hazard. An officer is not authorized under section 316.610 [Fla. Code] to stop a vehicle for just any windshield crack under the ‘not in proper adjustment or repair’ provision of subsection (1).”); State v. Granados, (No. 29,875, February 4, 2010)(N.M.Ct.App.2010) (not reported in P.3d) (officer’s mistake in citing statute prohibiting nontransparent material upon the windshield to justify the stop for a cracked windshield could be ignored because the crack violated the statute prohibiting driving an unsafe vehicle).

Because the traffic stop by Officer Barnes was based on a mistake as to the law, the stop was improper. As the United States Court of Appeals of the Eleventh Circuit stated in U.S. v. Chanthasouxat, 342 F.3d 1271 (11th Cir.2003):

“In the case before us, the officer’s mistake was one of law. Relying on [United States v.] Lopez-Soto [, 205 F.3d 1101 (9th Cir.2000) ] and [United States v.] Lopez-Valdez [, 178 F.3d 282 (5th Cir.1999) ], the Defendants argue that under the Fourth Amendment, an officer’s mistake of law cannot provide the objective grounds for reasonable suspicion or probable cause required to justify a traffic stop.
“In Lopez-Soto, the officer stopped the defendant because, based on his police academy training, the officer mistakenly believed that the Baja California vehicle code required that each vehicle’s registration sticker be visible from the rear of the vehicle. In fact, the code required that the sticker ‘be placed on the upper right hand corner of the windshield.’ Lopez-Soto, 205 F.3d at 1105 (citing Ley de Transito y Transportes art. 44 (Baha California, Mex.)) (internal quotations omitted). The Ninth Circuit held that the stop ‘was not objectively grounded in the governing law’ and thus was unconstitutional, even though the officer’s ‘mistaken view of the law [was held] in good faith.’ Id. at 1106.
“In Lopez-Valdez, an officer stopped the defendant for a broken taillight. The plastic cover of the taillight was broken, but the bulb itself was intact. 178 F.3d at 284-85. However, because of a previous case regarding the same statute ten years earlier, the Fifth Circuit noted that ‘no well-trained Texas police officer could reasonably believe that white light appearing with red light through a cracked red taillight lens constituted a violation of traffic law.’ Id. at 289. Therefore, the traffic stop was not ‘objectively reasonable.’ Id. at 289 n. 6. In addition, the Fifth Circuit held that the good-faith exception to the exclusionary rule should not be extended to cover an officer’s mistake of law. Id. at 289.
“In the present case, Officer Carter testified that at the time he wrote the citation, he believed, based on information from his training officer and the city magistrate and his history of having written over 100 tickets for ‘improper or no rear-view mirror’ that the Birmingham City Code required vehicles to have inside rear-view mirrors. Despite the government’s arguments to the contrary, we see no ambiguity on the face of either the Alabama statute or the Birmingham ordinance. The Birmingham law merely requires that a driver be able to ‘obtain a view of the street to the rear by looking backward from the driver’s position’ or have ‘a mirror so located as to reflect to the driver a view of the streets for a distance of at least 200 feet of the rear of the vehicle.’ Birmingham City Code § 10-11-5. Under the plain language of this ordinance, drivers who can look backward from the driver’s position to see out a back window would not be required to have any rear-view mirror. But even if a rear-view mirror is required because the driver cannot ‘obtain a view of the street to the rear by looking backward from the driver’s position,’ the ordinance says nothing about requiring that the mirror be on the inside of the vehicle.
“The Alabama statute requires a rear-view mirror, but specifies only that the mirror be ‘so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of such motor vehicle.’ Ala.Code § 32-5-214 (2002). Again, there is no requirement that the mirror be inside the vehicle. Admittedly, the requirement that the driver be able to see 200 feet to the rear of his vehicle creates a question of fact, but since the statute does not assume that this requirement can only be met by an inside rear-view mirror, there is no reason for Officer Carter to make such an assumption. The magistrate’s fee schedule for ‘improper or no rear-view mirror’ also says nothing about requiring an inside rear-view mirror.
“In United States v. Miller, 146 F.3d 274, 278 (5th Cir.1998), the Fifth Circuit noted that ‘[i]t should go without saying that penal statutes are to be strictly construed.’ The traffic stop at issue in Miller was based on the defendant’s prolonged use of his left turn signal without turning left or moving into the left lane. Id. at 276. The officer believed this was an infraction and pulled the defendant over. After obtaining consent for a search, the officer found marijuana in Miller’s vehicle. The Fifth Circuit held that, because the defendant’s conduct was ‘not a violation of Texas law, no objective basis for probable cause justified the stop of Miller.’ Id. at 279. Thus, the stop was unconstitutional, and the drug evidence would have to be excluded unless ‘Miller’s consent to the search ... cured the constitutional taint on the evidence.’ Id. The court explained that
“ ‘[t]he rule articulated by the Supreme Court in Whren [v. United States, 517 U.S. 806 (1996) ] provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions. But the flip side of that leeway is that the legal justification must be objectively grounded.’
“Id. (footnote omitted).”

342 F.3d at 1277-79. Cf. Commonwealth v. Jackson, 71 Mass.App.Ct. 1117, 884 N.E.2d 550 (2008) (officer’s stop for a crack in the windshield was proper although the prosecution did not prove the length of the crack as required by the relevant statute, because Jackson was not charged with that offense; rather the officer’s belief that the statute had been violated supplied the necessary reasonable suspicion to justify the stop).

Moreover, the reasonableness of the officer’s belief as to the law and his good faith in attempting to adhere to the law have been held not to apply to the circumstances like those of this stop. As further stated in Chanthasouxat:

“We agree with the government that taken together, Officer Carter’s training, the city magistrate’s statement to Officer Carter regarding the law, and his history of having written more than 100 tickets for lack of an inside rear-view mirror make Officer Carter’s mistake of law reasonable. The district court credited Officer Carter’s testimony that, for the reasons mentioned, Officer Carter believed that the Birmingham Code required inside rear-view mirrors. We do not question that finding. Furthermore, we note that Officer Carter’s mistake of law was more justified than the mistakes at issue in Lopez-Soto, Lopez-Valdez, and Miller. In Lopez-Soto, the officer’s mistake of law was based only on incorrect police academy training. In Lopez-Valdez, the police officer had the benefit of an identical case from ten years earlier. In Miller, the officer had no objective reason for his mistake of law. In contrast, Officer Carter had not merely been trained that the failure to have an inside rear-view mirror violated the Birmingham traffic code, but in addition, a city magistrate had told him the same thing. Most significantly, he had written more than 100 tickets for this particular ‘violation.’
“Nonetheless, the government’s argument is misguided because it proposes that we ask the wrong question: i.e., whether Officer Carter’s mistake of law was reasonable under the circumstances. We would answer that question in the affirmative. However, the correct question is whether a mistake of law, no matter how reasonable or understandable, can provide the objectively reasonable grounds for reasonable suspicion or probable cause. And to that question we join the Fifth and Ninth Circuits in holding that a mistake of law cannot provide reasonable suspicion or probable cause to justify a traffic stop.
“We also agree with the Fifth Circuit, Lopez-Valdez, 178 F.3d at 289, and the Ninth Circuit, Lopez-Soto, 205 F.3d at 1106, that the good faith exception to the exclusionary rule established by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should not be extended to excuse a vehicular search based on an officer’s mistake of law. The Ninth Circuit explained that
“ ‘there is no good-faith exception to the exclusionary rule for police who do not act in accordance with governing law. To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.’
“Lopez-Soto, 205 F.3d at 1106 (internal citation omitted). We also note the fundamental unfairness of holding citizens to ‘the traditional rule that ignorance of the law is no excuse,’ Bryan v. United States, 524 U.S. 184, 196, 118 S.Ct. 1939, 1947, 141 L.Ed.2d 197 (1998), while allowing those ‘entrusted to enforce’ the law to be ignorant of it.”

342 F.3d 1271, 1279-80 (11th Cir.2003) (footnote omitted). See also Hilton v. State, 961 So.2d at 294-95 (noting that federal courts have determined that “an officer’s mistake of law as to what constitutes a traffic violation, no matter how reasonable, cannot provide objectively reasonable grounds for reasonable suspicion .... [and] in strict ‘mistake of law1 cases, the conduct that the officer believed to be in violation of the law was not statutorily prohibited”).

Although at least one circuit of the federal courts has determined that “[i]n our circuit, if an officer makes a traffic stop based on a mistake of law, the legal determination of whether probable cause or reasonable suspicion existed for the stop is judged by whether the mistake of law was an ‘objectively reasonable one,’ ” United States v. Washington, 455 F.3d 824, 827 (8th Cir.2006), the court acknowledged that

“other circuits have held that a police officer’s mistake of law can never be objectively reasonable. See United States v. McDonald, 453 F.3d 958 (7th Cir.2006) (We agree with the majority of circuits to have considered the issue that a police officer’s mistake of law cannot support probable cause to conduct a stop.’); United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005) (‘[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.’); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.2003) (no matter how reasonable or understandable a mistake of law, it cannot provide the ‘objectively reasonable grounds for reasonable suspicion or probable cause’); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cm. 2000) (‘[I]n this circuit, a belief based on a misunderstanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop.’); United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998) (where officer was mistaken about law ‘no objective basis for probable cause justified the stop’).”

455 F.3d at 827 n. 1.

Moreover, in Washington, the United States Court of Appeals for the Eighth Circuit addressed a traffic stop based on a cracked windshield where the Nebraska statute prohibited a person from driving a vehicle “with any object placed or hung in or upon such vehicle, except required or permitted equipment of the vehicle, in such a manner as to obstruct or interfere with the view of the operator through the windshield or to prevent the operator from having a clear and full view of the road and condition of traffic behind such vehicle.” 455 F.3d at 826. The court determined that although a crack does not fall within the gambit of the statute, if the officer’s mistake of law was based on objectively reasonable grounds, the stop was proper. In deciding that the officer’s understanding of the statute was unreasonable and that there was no legal justification for the traffic stop, the court stated:

“[W]e are not confronted with any ‘coun-terintuitive and confusing’ motor statutes that might prohibit cracked windshields. Rather, § 60-6,256 clearly does not prohibit the conduct Officer Anton-iak thought it did, and this is an unusual case as the government concedes that no other motor statute or ordinance forbids cracked windshields. Moreover, the government has not presented any evidence of police manuals or training materials, state case law, legislative history, or any other state custom or practice that would create some objectively reasonable basis for the traffic stop.
“Consequently, the district court erred in adopting the magistrate judge’s conclusion that Officer Antoniak’s mistake of law was objectively reasonable based on Antoniak’s ‘training and past experiences of prior traffic citation cases involving cracked windshields.’ There is no evidence that Antoniak was trained by the police department to make stops on the basis of cracked windshields. Antoniak’s own past practices were based on the same mistake of law and do not create a justification for future stops. The district court also erred in adopting the magistrate judge’s statement that the mistake of law was objectively reasonable because it would be reasonable for an officer to believe that having a cracked windshield must violate some traffic law in Nebraska. The concept of an objectively reasonable mistake of law cannot be so unmoored from actual legal authority. Where there is a basis in state law for an officer’s action and some ambiguity or state custom that caused the officer to make the mistake, it may be objectively reasonable. See [United States v.] Martin, 411 F.3d [998] at 1001-02 [ (8th Cir.2005) ]. However, in the absence of such evidence, officers cannot act upon misunderstandings of clear statutes or, worse yet, their own notions of what the law ought to be.”

455 F.3d at 827-28.

In the present case, the State failed to introduce any evidence indicating that Officer Barnes had been trained to make traffic stops based on cracked windshields. Nor was there any other evidence indicating that Officer Barnes’s belief that he could make such a stop was objectively reasonable. Officer Barnes merely testified that he had made many traffic stops based on cracked windshields for safety reasons and because the cracks could have obstructed the drivers’ vision. Therefore, this traffic stop was also improper under the objectively reasonable standard. The stop was not based on a reasonable suspicion that J.D.I. had violated the law or had been involved in criminal activity.

Because the stop was improper, J.D.I.’s motion to suppress should have been granted and the information given as a result of being stopped should have been suppressed. Accordingly, we reverse the ruling and remand the case to the Montgomery Circuit Court.

REVERSED AND REMANDED.

WELCH, P.J., and WINDOM and KELLUM, JJ., concur. JOINER, J., concurs specially.

JOINER, Judge,

concurring specially.

This case turns on whether a crack in a windshield violates § 82-5-215(a), Ala. Code 1975, which prohibits an obstruction of a driver’s view by a “nontransparent material upon the front windshield.” Specifically, the issue is whether a crack in a windshield is a “nontransparent material.”

The Court of Appeals of Oregon recently addressed this issue. In State v. Elmore, 241 Or.App. 419, 250 P.3d 439 (2011), that court held that a crack in a windshield is not a “material” and therefore is not prohibited under a statute that applied to “any material that prohibits or impairs the ability to see into or out of the vehicle.” The court stated:

“The dispositive issue here is whether, for purposes of ORS 815.220(2), a crack is ‘any material that prohibits or impairs the ability to see into or out of the vehicle.’ (Emphasis added.) ...
“The term ‘material’ is not defined in the statute; consequently, we look to its ‘plain, natural, and ordinary meaning.’ PGE [v. Bureau of Labor & Indus.], 317 Or. [606,] 611, 859 P.2d 1143 [(1993)]. As pertinent, ‘material’ is defined to variously mean (1) ‘the basic matter (as metal, wood, plastic, fiber) from which the whole or the greater part of something physical (as a machine, tool, building, fabric) is made’; (2) ‘the finished stuff of which something physical (as an article of clothing) is made’; or (3) ‘the whole or a notable part of the elements or constituents or substance of something physical <the solid ~ s of the mixture will settle to the bottom of the container> or not physical <the ~ of his character was basically good>.’ Webster’s Third New Int’l Dictionary 1392 (unabridged ed 2002). The essence of those definitions is that ‘material’ is generally something that has physical substance.
“ ‘Material,’ in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be ‘upon any vehicle window.’ ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute ‘material’ — viz., ‘any sign, poster, one-way glass, adhesive film, glaze application’— all of which are things of physical substance. Id.
“Applying that construction to this case, we readily conclude that a crack is not a ‘material.’ As defendant posits, ‘a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.’ Here, the deputy stopped defendant because he saw a crack in defendant’s windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.”

Elmore, 241 Or.App. at 426-27, 250 P.3d at 443 (footnotes omitted).

In the present case, counsel for J.D.I. argued as follows at the suppression hearing:

“MR. WHITE: Judge, let me ask you this. ‘Other nontransparent material.’ Is the court finding that a crack — I mean, it doesn’t say cracked windshield.
“THE COURT: It doesn’t have to say cracked.
“MR. WHITE: Well, it says ‘signs.’ It says ‘posters.’
“THE COURT: It also says ‘nontransparent.’
“MR. WHITE: Material.
“THE COURT: That’s right.
“MR. WHITE: And is the Court finding that a crack—
“THE COURT: That’s a crack.
“MR. WHITE: — is a nontransparent material?
“THE COURT: Yes.
“MR. WHITE: Because I would argue that material, Judge, is a substance.
“THE COURT: You think so. I am saying, no, that law covers it.
“MR. WHITE: Well, let me just put this on record for the court. That other — nowhere in subsection (a), which I think the officer said he was traveling under, does it say a cracked windshield.
“THE COURT: I agree with you.
“MR. WHITE: Okay. It talks about which obstructs. But when it talks about obstructs, it means sign, poster or nontransparent material. So I would argue for the court, because it’s not clearly defined in my humble opinion. Material, I think, a common thumb down version means a substance, a hat, a shirt, a cat, something that you can feel and touch, a material, a meteorite, a rock, anything. But a material. Judge—
“THE COURT: And the Court is disagreeing.
“MR. WHITE: Okay. I understand you are. I respect that. I want the— that’s another issue that I have is that the definition of non — under subsection 32-5-215(a) nowhere, anywhere, unless I have missed it, does it mention under subsection (a) a cracked windshield.
“THE COURT: It doesn’t. It doesn’t. Okay. You’re exactly right. That’s why we need to take it up on appeal. There is about 20 issues in this one little suppression hearing that could be appealed that they need to give us some guidance on. So get right.”

(R. 44-16.)

Based on defense counsel’s argument at the suppression hearing and the reasoning applied by the Court of Appeals of Oregon in Elmore, I agree that a crack in a windshield is not a “nontransparent material,” and I concur with the Court’s holding today that a cracked windshield does not violate § 32-5-215(a), Ala.Code 1975.

Because a cracked windshield might nonetheless impair a driver’s visibility or pose other safety hazards on the road, I encourage the Alabama Legislature to consider amending § 32-5-215, Ala.Code 1975, to include, as a violation of subsection (a), a crack in a windshield “which obstructs the driver’s clear view of the highway or any intersecting highway.”

      . J.D.I. was also ordered to pay a $50 assessment to the Alabama Crime Victims Compensation Fund and court costs. Upon full payment of these moneys, J.D.I.’s probation was to be suspended, provided he did not violate the other conditions of his probation.

      . Officer Barnes testified that he believed that the crack ran from below the tint line across the windshield, but he was not certain. (R. 24.)

      . It is unclear from the record whether Officer Barnes arrested J.D.I. based on the outstanding misdemeanor warrants or for the new offense of obstruction by use of a false identity.

      .Although J.D.I. refers to probable cause as the standard to be applied in determining whether the officer could properly affect a traffic stop, reasonable suspicion is the proper standard.

      . Section 32-5-215, Ala.Code 1975, entitled "Windshields must be unobstructed; windshield wipers; tinting” states, in pertinent part, that ''[n]o person shall drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, sidewings, or side or rear windows of such vehicle which obstructs the driver's clear view of the highway or any intersecting highway.”

      . Although at one point J.D.I. seemed to challenge the constitutionality of the statute, it was on the grounds that it was not consistently applied to all violators. This raises an equal-protection rather than a void-for-vagueness challenge.

      . Subsection (d) of this statute was declared to be unconstitutionally vague by this court in Timmons v. City of Montgomery, 641 So.2d 1263 (Ala.Crim.App.1993).


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Jason Dirk WALTON, Appellant, v. STATE of Florida, Appellee.
    No. SC11-153.
    Supreme Court of Florida.
    Dec. 1, 2011.
    Rehearing Denied Dec. 20, 2011.

      Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Roseanne Eckert, Assistant CCR Counsel, South Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a second successive motion to vacate a judgment of conviction of three counts of first-degree murder and sentences of death under Florida Rule of Criminal Procedure 3.851. The order concerns postconviction relief from sentences of death, and this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. We affirm.

Procedural Posture

Jason Dirk Walton was convicted on three counts of first-degree murder and sentenced to death on each count. See Walton v. State, 481 So.2d 1197, 1197-98 (Fla.1985). On direct appeal, this Court affirmed the convictions but vacated the death sentences because the trial court failed to afford Walton an opportunity to confront two codefendants whose confessions and statements were presented during the penalty phase. See id. at 1198— 1201. The trial court conducted a second penalty phase and the jury again recommended death on all three convictions. See Walton v. State, 547 So.2d 622, 623 (Fla.1989). The trial court again imposed the death penalty on all three convictions, and this Court affirmed those sentences on appeal. See id. at 626. The United States Supreme Court denied certiorari review. See Walton v. Florida, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

Walton filed his initial postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged that trial counsel was ineffective. See Walton v. Dugger, 634 So.2d 1059, 1060-61 (Fla.1993). After an evidentiary hearing, the trial court denied the motion. See id. Walton appealed that denial to this Court and petitioned for a writ of habeas corpus. See id. This Court initially relinquished jurisdiction to the trial court for resolution of a public records request by Walton. See id. at 1062. On remand, Walton amended his previously filed rule 3.850 motion to add claims based upon information discovered in the public records and newly adduced evidence. See Walton v. State, 847 So.2d 438, 442-43 (Fla.2003). One such claim was that trial counsel was ineffective for failure to adequately investigate and prepare for trial. See id. at 442 n. 2. The trial court again denied all of Walton’s claims. See id. at 443. Walton appealed that denial to this Court and again petitioned this Court for a writ of habeas corpus. See id. This Court affirmed the denial of Walton’s postconviction motion and denied habeas relief. See id. at 460. We also denied a subsequent petition for a writ of habeas corpus filed by Walton pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Walton v. Crosby, 859 So.2d 516 (Fla.2003).

Walton thereafter filed a successive postconviction motion pursuant to Florida Rule of Criminal Procedure 3.851. See Walton v. State, 3 So.3d 1000, 1002 (Fla.2009). The trial court summarily denied relief. See id. at 1002. Walton appealed that denial to this Court, and'this Court affirmed the order of the postconviction court. See id.

Proceeding Below

In the current proceeding, Walton filed a second successive motion for postconviction relief pursuant to rule 3.851. He now claims that he was deprived of effective trial counsel during the penalty phase because that phase was conducted before a jury that returned a death recommendation in violation of Porter v. McCollum, — U.S. -, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). Walton asserts that the Porter decision established that the previous denial of his ineffective assistance of counsel claims was premised on this Court’s misreading and misapplication of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In relying on Witt v. State, 387 So.2d 922 (Fla.1980), Walton argues that Porter represents a fundamental repudiation of this Court’s Strickland jurisprudence, that it represents a fundamental change in law, and that, as a result, Porter’s holding with regard to ineffective assistance of counsel is retroactively cognizable in a successive postconviction motion. More specifically, Walton contends that Porter has created new law that permits him to revisit and relitigate his previous postconviction claim that trial counsel was ineffective due to a failure to uncover and submit mitigating evidence that related to Walton’s dysfunctional family experience, his childhood drug abuse and drug therapy, the failure to call a mental health expert to testify, a failure to contact and interview Walton’s family members, and a failure to present his school, medical, or military records.

The postconviction court did not conduct an evidentiary hearing and summarily found Walton’s motion to be untimely, successive, and procedurally barred. The court found that rule 3.851 requires a post-conviction motion to be filed within one year after a judgment and sentence of death becomes final, that Walton’s motion exceeded that time limit, and that his claim did not fall within one of the few, specific exceptions to the time limitation. The court also concluded that Porter does not create a new constitutional right to be applied retroactively, but rather, provides a mere application of Strickland and does not represent a fundamental change to the Strickland analysis. The postconviction court thereafter denied Walton’s motion based on the failure to file a timely, cognizable claim. This appeal followed.

Rule 3.851 and the Applicable Standard of Review

Florida Rule of Criminal Procedure 3.851 controls the filing of postconviction motions in capital cases. See Ventura v. State, 2 So.3d 194 (Fla.2009). Rule 3.851(d)(1) prohibits the filing of a postcon-viction motion more than one year after a judgment and sentence of death become final. Rule 3.851(d)(2) provides that no postconviction motion filed beyond that time limitation shall be considered unless it alleges that:

(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R.Crim. P. 3.851(d)(2) (emphasis added).

Rule 3.851(f)(5)(B) permits the denial of a successive motion without an evidentiary hearing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief,” Fla. R.Crim. P. 3.851(f)(5)(B), or if the motion or a particular claim by the defendant is legally insufficient, see Johnson v. State, 904 So.2d 400, 403 (Fla.2005). A postconviction motion is defined by rule 3.851(e)(2) as successive “if a state court has previously ruled on a postconviction motion challenging the same judgment and sentence.” A postconviction court’s decision to deny an evidentiary hearing for a successive rule 3.851 motion must be based on the written materials before the court. See id. For all practical purposes, such a ruling is tantamount to a pure question of law, which this Court reviews de novo. See id. When this Court reviews a trial court’s summary denial of postconviction relief, it must accept the allegations of the defendant as true to the extent that they are not refuted by the record. See Ventura, 2 So.3d at 198.

Decision in Witt and Principles of Retroactivity

In Witt, this Court confronted the seminal question of when and what changes in the law apply retroactively to a final judgment and sentence. See Witt, 387 So.2d at 924. The defendant in that case, by way of a postconviction motion, asserted six issues that had been or could have been presented on direct appeal. See id. The defendant predicated his appeal on alleged changes in the law that occurred subsequent to his direct appeal. See id.

In examining the potential retroactive application of changes in the law, this Court examined the implications that such application would have on the doctrine of finality. See id. at 925. The essential purpose of the doctrine of finality is to bring final resolution to disputes, create certainty in the criminal justice system, and utilize judicial resources fairly and efficiently. See id. The Court held that this doctrine should be abridged only when a more compelling objective appears, such as fairness and uniformity in individual adjudications, or a sweeping change in the law that so drastically alters substantive or procedural underpinnings of a final judgment and sentence that retroactive application of the law is necessary to avoid an obvious injustice. See id. Thus, a determination with regard to the retroactive application of a change in law is evaluated by balancing the considerations of individual fairness and justice against the interests of decisional finality. See id. at 926.

This Court in Witt held that only major constitutional changes will be cognizable in connection with a claim seeking retroactive application of the law. See id. at 929. We rejected the use of successive postconviction relief in the absence of a fundamental and constitutional law change because to permit such relief would render dubious the veracity or integrity of the original trial proceedings. See id. It would also permit a dual system of trial and appeal, the first of which would be tentative and nonconclusive. See id. Instead, this Court held that constitutional changes that are equivalent to a jurisprudential upheaval in criminal law warrant retroactive application — not evolutionary refinements in criminal law. See id.

This Court then delineated the “essential considerations” of a court in its determination of whether retroactive application of a change in constitutional law is necessary, which are (1) the purpose of the new rule, (2) the extent of previous reliance on the old rule, and (3) the purported effect that the retroactive application of the new rule would have on the administration of justice. See id. at 926. If a new constitutional rule is of sufficient magnitude given these considerations, this Court held that it may be applied retroactively. See id. at 929. A change in constitutional law that might also warrant retroactive application is a change that places beyond the authority of the state the power to regulate certain behavior or to impose certain penalties. See id.

Finally, this Court outlined the three overarching parameters to be considered when determining the retroactivity of a change in law as follows:

To summarize, we today hold that an alleged change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.

Id. at 931 (emphasis added).

Decision in Porter

In Porter, the defendant was convicted on two counts of first-degree murder and sentenced to death on one of those counts. See Porter, 130 S.Ct. at 448. After the defendant’s direct appeal, in which this Court upheld the defendant’s judgment and sentence of death, the defendant filed a motion for postconviction relief in a Florida circuit court in which he alleged ineffective assistance of trial counsel under Strickland. See id. The defendant claimed that trial counsel was ineffective in connection with his failure to investigate and present mitigating evidence during the penalty phase that would have described Porter’s abusive childhood, his heroic military service and the trauma he suffered while serving, his long-term substance abuse, and his impaired mental health and capacity. See id. at 449. The circuit court denied relief and this Court affirmed that denial, holding that the defendant failed to meet the prejudice requirement of Strickland. See id. at 448.

After this Court’s decision, the defendant filed a petition for writ of habeas corpus in federal district court in which he alleged that trial counsel’s failure to adduce the evidence in mitigation during the penalty phase violated his right to counsel under the Sixth Amendment of the United States Constitution. See id. The federal district court agreed with the defendant and granted his petition. See id. The Court of Appeals for the Eleventh Circuit reversed the district court’s grant of the defendant’s petition and held that this Court’s conclusion that trial counsel’s deficient performance did not prejudice the defendant was a reasonable application by this Court of the law announced in Strickland. See id. However, the United States Supreme Court, on certiorari review, held that this Court’s decision and analysis were incorrect because trial counsel’s failure to investigate and present the evidence in question during the penalty phase satisfied the prejudice prong under Strickland. See id. (“Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented.”).

Analysis

The trial level postconviction court here properly denied Walton’s second successive postconviction motion because the decision in Porter does not constitute a fundamental change in the law that mandates retroactive application under Witt. Walton filed his motion well after the one-year deadline for postconviction motions under rule 3.851. Walton’s claim that Porter applies retroactively is incorrect and insufficient as a matter of law for a successive motion because the decision in Porter does not concern a major change in constitutional law of fundamental significance. Rather, Porter involved a mere application and evolutionary refinement and development of the Strickland analysis, i.e., it addressed a misapplication of Strickland. Porter, therefore, does not satisfy the retroactivity requirements of Witt. See generally Witt, 387 So.2d at 924-31.

Further, in the proceedings below, collateral counsel essentially asked the post-conviction trial court to reevaluate Walton’s claims of ineffective assistance of counsel that had been litigated in his prior postconviction motion in light of the decision in Porter. This is not a permitted retroactive application as articulated in Witt, which allows a limited retroactive application only to changes in the law that are of fundamental constitutional significance.

Therefore, we affirm the postconviction court’s denial of Walton’s second successive postconviction motion.

It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, LABARGA, and PERRY, JJ„ concur.

PARIENTE, J., specially concurs with an opinion.

QUINCE, J., recused.

PARIENTE, J.,

specially concurring.

I agree with the majority that Porter v. McCollum, — U.S. -, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), does not represent a fundamental change in the law, but rather merely applied Strickland to the facts of that case. However, I write to express my disagreement with the manner in which the majority sets forth the Stride- land standard. In my view, it is extremely important to emphasize that the prejudice prong of Strickland is an inquiry of whether there is “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In fact, the United States Supreme Court in Porter ended its short opinion reversing this Court’s conclusion of no prejudice' by reiterating that the defendant does not need to “show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter, 130 S.Ct. at 455-56 (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052).

      . The defendant in Witt filed a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. Walton, on the other hand, filed his successive postconviction motion pursuant to rule 3.851. This Court decided Witt before the adoption of rule 3.851, which, after October 1, 2001, was to be used for postconviction or collateral motions filed by capital defendants. See Fla. R.Crim. P. 3.851(1). Thus, rule 3.851 merely supplanted 3.850, and the principles of Witt apply equally to motions filed under either rule.


author: PER CURIAM.

text:
    Randy MALDONADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2855.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2011.
    Randy Maldonado, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011).


author: ROTHENBERG, J.

text:
    Alejandro RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3381.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Dec. 2, 2011.

      Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Dan Hallenberg, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG and LAGOA, JJ.
   ROTHENBERG, J.

Alejandro Rodriguez" (“the defendant”) appeals from an order finding the child-victim’s hearsay statements were reliable, and therefore admissible evidence pursuant to section 90.803(23), Florida Statutes (2008). Because the trial court complied with the statute, the trial court’s written order applied the proper analysis, and the trial court’s findings are supported by the record, we affirm.

The defendant was charged by information with six counts of sexual battery on a person less than twelve years of age by a person eighteen years of age or older; two counts of lewd and lascivious molestation on a person less than twelve years of age by a person eighteen years of age or older; and one count of kidnapping of a person less than thirteen years of age. Prior to trial, the State nolle pressed the two counts of lewd and lascivious molestation and the kidnapping count.

Prior to trial, a bifurcated hearing was held to address the State’s intent to rely on child hearsay statements pursuant to section 90.803(23). At the conclusion of the hearing, the trial court entered a written order finding that the statements made by the child to all three witnesses — Detective Nelson Andreu, Jr., Mercy Restani, and Officer Michael Parmenter — were reliable under the totality of the circumstances, pursuant to the non-exclusive list set forth in State v. Townsend, 635 So.2d 949 (Fla.1994). The trial court’s order made specific findings in support of its ruling that the proffered hearsay statements were reliable.

The defendant was subsequently convicted of the charges, and he was sentenced to consecutive life sentences. This appeal followed.

Our standard in reviewing a trial court’s determination on the reliability and admissibility of child hearsay statements under section 90.803(23) is abuse of discretion. See Ferreiro v. State, 936 So.2d 1140, 1141 (Fla. 3d DCA 2006) (citing Perez v. State, 536 So.2d 206, 210 (Fla.1988)).

In Townsend, the Florida Supreme Court held that for a child’s hearsay statement to be admitted under section 90.803(23), the child sexual abuse hearsay exception, the statement must meet two specific reliability requirements: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the child’s statement must reflect that the statement provides sufficient safeguards of reliability. Townsend, 635 So.2d at 954. The Florida Supreme Court also established a non-exclusive list of factors for the trial court to consider in evaluating, under the totality of the circumstances, the reliability of the child’s out-of-court statement under the statute, and specified that once the trial court reviews the trustworthiness and reliability of the statement, section 90.803(23)(c) expressly requires that the court “make specific findings of fact, on the record, as to the basis for its ruling.” Id. at 957-58.

In the instant case, the record shows that the trial court complied with the statute and the Florida Supreme Court’s mandate in Townsend by making detailed findings of fact regarding the time, content, and other relevant circumstances in which the child-victim’s hearsay statements were made, so as to establish reliability. Specifically, the trial court found: (1) the child provided a detailed account of the various assaults committed by the defendant upon her; (2) the child’s reports to the various witnesses were consistent; (3) the questions posed to the child were open-ended, non-leading questions; (4) the child’s answers were given using words consistent with a child her age; (5) there was nothing to indicate that the child-victim’s hearsay statements, or the method by which those statements were obtained or reported, lacked trustworthiness; (6) the child had no reason to fabricate any of the accusations or details about the incident nor was there any evidence to suggest that she was coerced or coached; and (7) there was no evidence to indicate that this was an attempt to deal with a domestic dispute. Accordingly, we conclude that the trial court did not abuse its discretion in determining that the child’s hearsay statements were reliable, and therefore admissible evidence pursuant to section 90.803(23).

The defendant argues that under Townsend, a trial court may not rely on corroborating evidence, such as medical evidence of injuries, as a factor in the court’s reliability determination. We agree. The reliability of the statements must be determined independent of any corroborating evidence. Id. at 956. To the extent that the trial court may have relied on any corroborating evidence, we find the error harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Pedrosa v. State, 781 So.2d 470, 473 (Fla. 3d DCA 2001) (finding that the improper admission of hearsay identification statements was harmless error given all of the other evidence). Here, because the trial court made detailed findings of fact regarding the time, content, and other relevant circumstances in which the child-victim’s statements were made, so as to establish reliability, we conclude that the trial court did not abuse its discretion in admitting the hearsay statements.

Affirmed.


author: VILLANTI, Judge.

text:
    In re COMMITMENT OF Bradley J. JACKSON. Bradley J. Jackson, Appellant, v. State of Florida, Appellee.
    No. 2D10-1809.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    Rehearing Denied Oct. 17, 2011.

      James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Bradley Jackson raises two issues in this appeal from the final judgment and order of involuntary commitment rendered after a jury found him to be a sexually violent predator. We reject without discussion Jackson’s claim that the trial court abused its discretion when it limited the parties by pretrial order to one expert witness each. However, because we conclude that the trial court abused its discretion when it excluded evidence of Jackson’s conditional release contract with the Florida Parole Commission, we reverse and remand for a new trial.

In early 1995, Jackson was convicted of two counts of sexual battery, one count of attempted sexual battery, one count of lewd fondling, two counts of contributing to the delinquency of a minor, and one count of resisting arrest without violence based on events that had occurred in 1998. He was sentenced to a total of twenty-two years in prison for these various offenses.

On June 18, 2008, in anticipation of Jackson’s impending release from prison, the State filed a petition for involuntary civil commitment pursuant to section 394.914, Florida Statutes (2007). While the commitment proceedings were pending, the Commission interviewed Jackson for possible conditional release pursuant to section 947.1405(5), Florida Statutes (2008). After its investigation, the Commission determined that Jackson was eligible for conditional release, and Jackson signed a conditional release contract with the Commission on November 10, 2008. Pursuant to this contract, Jackson was required, among other things, to participate in a sex offender treatment program until such time as the program authorities determined that treatment was no longer necessary or until Jackson’s conditional release expired, whichever came first. The contract also imposed a host of other requirements on Jackson, including mandatory registration as a sexual predator, restrictions on where Jackson could live and work, a mandatory curfew, mandatory random drug and alcohol screenings, mandatory periodic reporting, and frequent mandatory meetings with his conditional release supervisor.

Because of the pending commitment petition, Jackson was not released from prison upon his conditional release date but instead was held pending the outcome of the commitment trial. During the trial in February 2009, Jackson argued that he did not qualify as a “sexually violent predator,” as defined by section 394.912 because he did not require secure confinement for treatment, and he offered his conditional release contract into evidence in an effort to show that there was an adequate, less restrictive alternative to his involuntary commitment in a secure facility. The court permitted Jackson to introduce this contract into evidence, and the State was permitted to introduce evidence to contradict Jackson’s assertion that the terms of the conditional release contract would be sufficient to provide treatment and protect society. Ultimately, the trial resulted in a mistrial, with four jurors finding that Jackson qualified as a sexually violent predator and two finding that he did not.

On February 25, 2009, the State filed an amended petition for involuntary commitment, which it was permitted to do following the mistrial. Prior to the start of the second trial, the State filed a motion in limine seeking to preclude Jackson from offering any evidence concerning his conditional release contract or the provisions of it. The State argued that the conditional release contract was not relevant to any of the issues to be considered by the jury. In response, Jackson argued that the terms of the conditional release contract were relevant to support his claim that he was amenable to outpatient treatment and that society would be adequately protected if he were released. Over Jackson’s objection, the trial court granted the State’s motion and prohibited Jackson from offering any evidence at his second trial concerning the conditional release contract or its terms. Somewhat unsurprisingly, without this evidence the second trial ended in a unanimous jury verdict finding Jackson to be a sexually violent predator. Based on that ruling, the trial court ordered Jackson to be involuntarily committed.

In this appeal, Jackson contends that the trial court’s ruling excluding the evidence of his conditional release contract as irrelevant was error. We agree. Section 394.912(10), Florida Statutes (2008), defines a “sexually violent predator” as any person who “[h]as been convicted of a sexually violent offense” and who “[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” (Emphasis added.) Under this definition, the potential efficacy of any available less restrictive alternative treatment is a matter for the jury’s consideration in determining whether a person meets the definition of a sexually violent predator.

[T]he Act requires that the jury find by clear and convincing evidence that the person is a violent sexual predator who has a mental abnormality that predisposes him or her to commit sexually violent offenses. Moreover, they must determine that he is likely to reoffend if not confined in a secure facility because his or her propensity to commit acts of sexual violence makes the person a menace to the health and safety of others. If the evidence fails to establish that the person is a violent sexual predator in need of secure commitment, that person will not be civilly committed. Whether the person needs confinement in a secure facility or whether less restrictive alternatives are appropriate are eviden-tiary matters the jury may consider in determining whether the person is a sexually violent predator. If less restrictive alternatives are appropriate, the jury will find that the person is not a violent sexual predator and confinement will not be ordered. On the other hand, however, when the jury finds by clear and convincing evidence that the person is a violent sexual predator, it has concluded that there are no less restrictive alternatives to confinement that would adequately protect society and provide the necessary control, care and treatment of the individual.

Westerheide v. State, 767 So.2d 637, 648-49 (Fla. 5th DCA 2000) (emphasis added), approved, 831 So.2d 93 (Fla.2002). Thus, “if the person is amenable to less restrictive alternative treatment he or she does not meet the statutory definition of a sexually violent predator and is not subject to commitment.” Westerheide v. State, 831 So.2d 93, 103 (Fla.2002). As is clear from both the plain language of the statute and the Westerheide cases, evidence bearing on the question of whether less restrictive alternatives to secure commitment would be effective to prevent that individual from engaging in acts of sexual violence is the most relevant factor in the jury’s determination of whether a particular individual qualifies as a sexually violent predator.

Here, the jury in the commitment trial was specifically tasked with determining whether Jackson required secure confinement for treatment and for the protection of society. Jackson sought to introduce his conditional release contract into evidence in an effort to convince the jury that he did not qualify as a sexually violent predator because there were less restrictive alternative treatments available to him that would effectively prevent him from committing a sexually violent offense and that would also be adequate to protect society. The existence of this contract, its terms, and the potential penalties should Jackson violate these terms constituted relevant evidence that bore directly on the question of whether Jackson was “likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10). Thus, the trial court abused its discretion by excluding evidence of this contract as irrelevant. To hold otherwise is to preclude Jackson from presenting evidence in support of his defense that he did not meet the statutory definition of a sexually violent predator, as he was alleged to be by the State. We can conceive of no scenario under which the jury in an involuntary civil commitment proceeding should not receive all relevant evidence from both parties on the issues directly before it.

However, our holding today is very narrow. We hold only that the evidence of Jackson’s signed conditional release contract was relevant to the issues before the jury and that the trial court abused its discretion by excluding this relevant document from evidence. Nothing in our holding should be read to preclude the State from presenting evidence, as it did at Jackson’s first trial, to establish that the proffered “less restrictive alternative” is not a truly viable alternative or will not be adequate to protect society from the offender. Nor should our holding be read to suggest that we have any opinion as to whether conditional release is or may be an adequate, less restrictive alternative to secure commitment for any specific offender. This latter question is solely within the province of the jury.

Reversed and remanded for a new trial.

WHATLEY, J., Concurs.

WALLACE, J., Concurs in result only.

      . As best we can determine from the record, Jackson would be on conditional release for somewhere between seven and nine years.

      . Section 394.917(1), Florida Statutes (2008), permitted the State to refile a petition for involuntary civil commitment if the jury did not reach a unanimous verdict but if a poll of the jurors showed that the majority of the jurors would have found that the defendant was a sexually violent predator.


author: SALTER, J. RAMIREZ, J.,

text:
    CRC 603, LLC, and CRC 1103, LLC, Appellants, v. NORTH CARILLON, LLC, and First American Title Insurance Company, Appellees.
    Nos. 3D10-2230, 3D10-2231.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.

      Lawrence R. Metsch, Miami; Joseph E. Altschul, Fort Lauderdale, for appellants.
    Berman Rennert Vogel & Mandler, and Neil J. Berman, Miami; Krinzman Huss & Lubetsky, and Cary A. Lubetsky, Miami, for appellees.
    Before RAMIREZ, CORTINAS and SALTER, JJ.
   SALTER, J.

In these consolidated appeals, we are asked to review the legal sufficiency of claims that a condominium developer (ap-pellee North Carillon, LLC) and its escrow agent (appellee First American Title Insurance Company) violated the requirements of section 718.202, Florida Statutes (2006), regarding pre-closing deposits by the buyer/appellees. The stakes are significant for the parties and for others — one consequence of the current real estate recession in South Florida is that many prospective condominium buyers are attempting to void the purchase contracts they signed in what hindsight now discloses was an irrationally exuberant real estate market.

In the cases at hand, the purchase price for each unit was in excess of $1,000,000, and the deposit for each unit exceeded $176,000. If, as alleged in the second amended complaint, the developer failed to comply with the pertinent requirements of section 718.202, the purchase contract is voidable and the buyer is entitled to reclaim the deposit. If the developer did comply and, as here, each buyer refused to close pursuant to the purchase contract, substantially all of the deposits are to be forfeited to the developer. In addition, the prevailing party is entitled to recover its reasonable attorney’s fees and costs under the terms of the purchase contracts.

We conclude that a well-reasoned federal decision in 2009 on this issue is disposi-tive, notwithstanding a 2010 statutory amendment intended to “clarify” the escrow requirements. Based on that analysis, we reverse the final judgments below with respect to the buyers’ claims against the developer under section 718.202. We affirm the final judgments relating to the buyers’ purported claims against the escrow agent.

I. The Statutory Escrow Requirements Before July 1, 2010

The buyers are single-asset, Nevada limited liability companies formed to buy and hold the condominium units in “North Carillon Beach,” a luxury condominium development on Collins Avenue in Miami Beach. The contracts for Units N-603 and N-1103 were signed by the buyers and developer in May 2006.

In May 2006, section 718.202(1) required, in pertinent part:

If a developer contracts to sell a condominium parcel and the construction, furnishing, and landscaping of the property submitted or proposed to be submitted to condominium ownership has not been substantially completed in accordance with the plans and specifications and representations made by the developer in the disclosures required by this chapter, the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price. [Emphasis supplied].

In May 2006, section 718.202(2) required, in pertinent part:

All payments which are in excess of the 10 percent of the sale price described in subsection (1) and which have been received prior to completion of construction by the developer from the buyer on a contract for purchase of a condominium parcel shall be held in a special escrow account established as provided in subsection (1) and controlled by an escrow agent and may not be used by the developer prior to closing the transaction, except as provided in subsection (3) or except for refund to the buyer. [Emphasis supplied].

Subsection (3) of section 718.202 allows a developer to withdraw “escrow funds in excess of 10 percent of the purchase price,” if allowed by the purchase contract, “from the special account” required by subsection (2), when construction has begun and provided those excess funds are used “in the actual construction and development of the condominium property.”

The question of law presented here— whether a developer may use a single escrow account (versus two separate accounts) for “10 percent” buyer deposits under section 718.202(1) and “in excess of the ten percent” buyer deposits under section 718.202(2) — was directly addressed and decided by the United States District Court for the Southern District of Florida in 2009 in Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F.Supp.2d 1344 (S.D.Fla.2009), aff'd in part, vacated in part, 637 F.3d 1169 (11th Cir.2011). The court held, after extensive analysis:

Considering the plain language of the statute, giving meaning to each word as written, and avoiding an interpretation that would render portions of the statute surplusage, the only reasonable conclusion is that the statute requires a developer to establish two separate escrow accounts if a buyer deposits more than 10 percent of the purchase price. Given that requirement, and given the express language of section 718.202(5), [the developer’s] failure to establish two separate escrow accounts for the [buyers’] deposit violated the statute, and rendered the Purchase and Sale Agreement voidable by the [buyers].

Double AA, 674 F.Supp.2d at 1350.

In December 2009, only days after Double AA was issued, the buyers in the present cases amended their circuit court complaints to add a count to void the purchase contracts for failing to utilize two separate escrow accounts for the “10 percent” and “in excess of the 10 percent” components of the buyers’ deposits. If Double AA was a correct statement of the law regarding the “special” and separate, second escrow account requirement at the time it was issued — and we conclude that it was correct — then the buyers’ allegations in this case are legally sufficient to state a violation of the statutory requirement and thus void the purchase contracts.

II. The 2010 Amendment and “Clarification”

During the first legislative session after the Double AA decision was issued, the legislature enacted an amendment to section 718.202. The amendment, part of a comprehensive set of revisions to Florida’s condominium laws effective July 1, 2010, added a new section 718.202(11):

(11) All funds deposited into escrow pursuant to subsection (1) or subsection (2) may be held in one or more escrow accounts by the escrow agent. If only one escrow account is used, the escrow agent must maintain separate accounting records for each purchaser and for amounts separately covered under subsections (1) and (2) and, if applicable, released by the developer pursuant to subsection (3). Separate accounting by the escrow agent of the escrow funds constitutes compliance with this section even if the funds are held by the escrow agent in a single escrow account. It is the intent of this subsection to clarify existing law.

[Emphasis added].

The developer argues that the amendment only clarifies section 718.202, that its effect is therefore retroactive, and that the amendment applies to the cases at hand. The developer also argues that the amendment is procedural and remedial in nature, such that it applies to contracts and causes of action in existence upon the effective date. If the 2010 amendment applies to May 2006 contracts and a December 2009 cause of action, then the single escrow account for the “10 percent” and “in excess of the 10 percent” deposits complies with section 718.202, and the developer and escrow agent need only prove that they kept “separate accounting records” for each purchaser and the amounts deposited under section 718.202(1) and the amounts deposited or withdrawn under section 718.202(2) and (3).

The buyers argue that the 2010 amendment does not “clarify” a set of escrow requirements that were enacted over twenty years before the “clarification,” and that the amendment impermissibly impairs their vested contract rights and abrogates their 2009 cause of action for a declaration that the purchase contracts are void.

These contentions require us to determine (a) whether the 2010 amendment alters the analysis set forth in Double AA or the application of that analysis to the 2006 contracts and 2009 causes of action by the buyers, and (b) whether the buyers alleged a legally sufficient cause of action against the second defendant and appellee, First American Title Insurance Company.

III. Analysis — Developer

The appellees are correct that we are not bound by the decision of a federal court applying Florida law. Bystrom v. Mut. of Omaha Ins., 566 So.2d 351, 352 (Fla. 3d DCA 1990); Liberty Am. Ins. Co. v. Kennedy, 890 So.2d 539, 541 (Fla. 2d DCA 2005). Our esteemed federal colleagues are quick to acknowledge that “when federal courts interpret a state law, they are merely guessing at how the Florida state courts would interpret it and are often wrong.” Chalfonte Condo. Apartment Ass’n, Inc. v. QBE Ins. Corp., 526 F.Supp.2d 1251, 1254 (S.D.Fla.2007) (Middlebrooks, J.)(noting United States Court of Appeals Judge Carnes’ observation that “when we write to a state law issue, we write in faint and disappearing ink”) (Sultenfuss v. Snow, 35 F.3d 1494, 1504 (11th Cir.1994)).

The other side of that coin is applicable here, however; when a federal court, particularly one in Florida, has had the first opportunity to address a state law question and has ruled on it in a well-reasoned, persuasive opinion, we may cite and adopt that decision as our own. And so it is in this case; Double AA applied well-settled principles of statutory construction to support its holding that “special account” and “special escrow account” are terms mandating separate accounts for deposits under section 718.202(1) and (2). That case did not hold, nor do we, that a developer must establish a separate bank or other depository account for each buyer’s “10 percent” deposit relating to a pre-completion condominium property, or for each buyer’s “in excess of the 10 percent” deposit. Rather, the issue is the mandatory separateness of the escrow accounts for the two types of deposits made under subsections (1) and (2) of the statute.

Turning to the 2010 amendment to section 718.202 adopted after Double AA, we are persuaded that the enactment is more than mere “clarification,” and that it cannot be given retroactive application to the contracts and causes of action before us. As to “clarification,” we have repeatedly held that gaps of a decade or two between the enactment of a state statute and a “clarifying” amendment may preclude retroactive effect, as the memberships of the earlier and later legislatures are so different. Ramcharitar v. Derosins, 35 So.3d 94, 99 (Fla. 3d DCA 2010). In the cases at hand, the original statute and the amendment are separated by over twenty-five years.

As to whether the amendment affects substantive rights (or is instead merely procedural or remedial in nature), the 2006 contracts included, as a matter of law, those statutory provisions affecting the rights of the parties and applicable to the terms of their agreements. See, e.g., Brickell Bay Club v. Ussery, 417 So.2d 692, 694 (Fla. 3d DCA 1982) (“All statutes in effect upon the date of execution of a contract are a part of the contract.”). The buyers thus obtained, in 2006, enforceable rights to specific provisions regarding their deposits and regarding the voidability of their contracts in the event of non-compliance by the developer. Similarly, when the buyers added a claim in late 2009 based on section 718.202 (before the 2010 amendment and after the holding in Double AA), they had a legally sufficient, fully-accrued cause of action to void the purchase contracts and obtain a refund of their deposits.

Assessing the amendment and this record under Menendez v. Progressive Express Insurance Co., 35 So.3d 873, 877 (Fla.2010), and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995), we conclude that (1) the Legislature expressed an intention that the 2010 amendment be applied retroactively, but (2) retroactive application must be rejected as it impairs a vested contractual right. Article I, section 10, of the Florida Constitution prohibits retroactive application under such a circumstance.

The developer has also urged us to give deference to an “informal legal opinion” provided by an assistant general counsel of the Florida Department of Business & Professional Regulation in 1999 to the Chief of the Bureau of Condominiums within Florida’s Division of Condominiums, Timeshares, and Mobile Homes. That opinion concluded that the two types of deposits under section 718.202(1) and (2) need not be placed in separate depository escrow accounts if they are “accounted for separately.” This contention was thoroughly considered and rejected, however, by the federal court in the Double AA case in the 2010 findings of fact and conclusions of law, 2010 WL 1258086, at *15-17, 2010 U.S. Dist. LEXIS 30931, at *47-52. Finding that analysis persuasive, we decline to defer to the 1999 informal DBPR legal opinion.

IV. Analysis — Escrow Agent

The U.S. Court of Appeals for the Eleventh Circuit concluded that section 718.202 “does not authorize a private cause of action against an escrow agent.” Double AA Int’l Inv. Group, Inc. v. Swire Pac. Holdings, Inc., 637 F.3d 1169, 1171 (11th Cir.2011) (citing United Auto. Ins. Co. v. A 1st Choice Healthcare Sys., 21 So.3d 124, 128 (Fla. 3d DCA 2009)). We agree and therefore affirm the dismissals and final judgments in favor of appellee First American Title Insurance Company, the escrow agent in the cases at hand.

V. Conclusion

Assuming the truth of the allegations in the second amended complaint, and under section 718.202 as it existed in 2006 when the purchase contracts were entered into, each buyer/appellant was entitled to have its “10 percent” deposit in an escrow account separate from the “special” escrow account used for that buyer’s “in excess of the 10 percent” deposit. Notwithstanding the Florida Legislature’s apparent intention that the 2010 amendment and new section 718.202(11) be applied retroactively, we conclude that this would impermissi-bly impair each buyer’s pre-amendment contract rights.

The dismissals and final judgments in favor of the developer and against each buyer are reversed, and the cases are remanded to the circuit court for further proceedings. The final judgments in favor of the escrow agent and against each buyer are affirmed.

CORTIÑAS, J., concurs.

RAMIREZ, J.,

concurring in result only.

I concur in the result only because, in my view, the majority opinion is mostly dicta. The issue as framed by these appeals is not whether a condominium developer and its escrow agent violated the requirements of section 718.202, Florida Statutes (2006). These appeals only raise the issue of whether the trial court properly dismissed count III of the Second Amended Complaint. The majority states that “[t]he stakes are significant.” Respectfully, I believe what is at stake is only whether count III stated a cause of action. That count merely alleges that the developer and the escrow agent violated section 718.202, Florida Statutes, “when they established a single account (rather than two accounts) by means of which to hold the Purchaser’s deposit.” We should simply reverse the dismissal. The pleadings in this case have not defined the issue the majority seeks to decide — whether the statute calls for “a special escrow account,” as the language of the statute requires, or “a special separate escrow bank account,” as the majority has redrafted the statute.

The case on which the majority relies, Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F.Supp.2d 1344 (S.D.Fla.2009), was a decision rendered after a trial, not a motion to dismiss. Furthermore, on appeal, the Eleventh Circuit never approved the reasoning adopted by the majority.

[Appellants] argue that the requirements of § 718.202 are met by a “separate accounting” of the funds placed in escrow in excess of ten percent of the purchase price, even if all of the deposited funds are kept in a single account. However, even if a separate accounting of the escrowed deposits satisfies the requirements of § 718.202, the district court found that the accounting practices here failed to meet even this standard. On this record, we cannot say this finding was clearly erroneous. The record reflects that only a single escrow account was opened to hold all of the contract deposits made by purchasers of Asia condominium units. While [the Escrow Agent] maintained a separate buyer’s transaction log for each condominium unit, this log does not separate the buyer’s protected ten percent deposit from the second ten percent deposit that could be withdrawn to pay for construction costs. We note that the buyer’s transaction log in evidence contains two distinct columns that allow the escrow agent to distinguish deposits in the first ten percent from deposits in the second ten percent, but those columns simply were not utilized to keep track of the deposits at issue in this case. Instead, the log contains a single listing of all deposits and withdrawals on the account, without indicating which funds are protected under § 718.202(1). Thus, regardless of whether the statute requires one escrow account or two,[FN2] the district court did not err in finding the contract voidable under § 718.202(5) for failure to maintain a separate accounting, and therefore did not err in ordering the full return of Plaintiffs’ deposits plus interest.

Double AA Int'l Inv. Group, Inc. v. Swire Pac. Holdings, Inc., 637 F.3d 1169, 1170-1171 (11th Cir.Fla.2011). More importantly, in footnote 2, the Eleventh Circuit Court stated: “Since there was no separate accounting, we need not and do not reach the issues regarding the statutory construction of § 718.202, the effect of the Department of Business and Professional Regulation’s informal legal opinion, or the new amendment to § 718.202.” If the Eleventh Circuit did not reach those issues after a full trial, I see no reason for us to reach them here on a motion to dismiss.

      . The two condominium contracts at issue are essentially identical, though involving separate units. Before oral argument, we granted the appellants' motions to consolidate the two appeals for purposes of a single reply brief. Because the cases involve the same appellees and legal issues, on our own motion we now consolidate the cases for all purposes.

      .The condominium purchase contracts were signed by the parties in 2006. Section 718.202 has been amended since then, as detailed below.

      . § 718.202(5), Fla. Stat. (2006).

      . These contracts required the developer to refund, in the event of a buyer default, any deposits held above fifteen percent of the purchase price.

      . Subsection (3) also requires that the purchase contract contain a special, all uppercase legend, and prohibits the use of the “excess funds” for "salaries commissions, or expenses of salespersons or for advertising purposes.”

      . The other counts alleged violations of the federal Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720, and the Florida Deceptive and Unfair Trade Practices Act, section 501.203, Florida Statutes (2006). Those counts were voluntarily dismissed before the entry of the final judgment under review.

      . At this procedural stage, the existence of any such accounting records has not been established or disproven.

      . In this extensive discussion of the 2009 opinion in Double AA, we do not overlook the additional legislative history and analysis in the U.S. District Court's findings of fact and conclusions of law in the case in early 2010. Double AA Int’l Inv. Group, Inc. v. Swire Pac. Holdings, Inc., No. 08-23444, 2010 WL 1258086, 2010 U.S. Dist. LEXIS 30931 (S.D.Fla. Mar. 30, 2010).