author: MAIN, Judge.

text:
    Ronald Jay McFADDEN v. STATE of Alabama.
    CR-07-1923.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Sept. 24, 2010.
    Certiorari Denied Jan. 14, 2011 Alabama Supreme Court 1100016.

      Jeffry Cali Armstrong, Daphne, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   MAIN, Judge.

Ronald Jay McFadden was convicted of one count of possession of obscene matter containing a visual reproduction of a person under the age of 17 years, a violation of § 18A-12-192(b), Ala.Code 1975, and one count of production of obscene matter containing a visual reproduction of a person under 17 years of age, a violation of § 13A-12-197, Ala.Code 1975. This appeal followed.

In July 2005, during a routine visit to McFadden’s residence because McFadden was on probation for prior convictions, Probation Officer Cory Robbins of the Baldwin County Probation Office noticed that a lower kitchen cabinet door was ajar and that a pair of children’s underwear was in the cabinet. Probation Officer Robbins also discovered other items in the kitchen cabinets, including toys and children’s clothing. He contacted his supervisor, who gave him permission to search further. He also contacted Officer Connie King with the Foley Police Department. Probation Officer Robbins found depictions of nude children that he described as “numerous photos depicting young children, what would appear to be collages surrounded by adult genitalia.” (R. 49-50.) At that point, he detained McFadden and read him his Miranda rights. McFadden denied knowledge of the items in his residence.

Officer King obtained a search warrant for the residence where he and other officers discovered children’s items, such as toys, videos, magazines, underwear, children’s books and parenting books, a growth chart depicting nude drawings of children, and numerous collage or montage exhibits.

I.

McFadden argues, as he did in the circuit court below, that the evidence was insufficient to sustain his convictions for possession of obscene matter and production of obscene matter. Relying on R.K.D. v. State, 712 So.2d 754 (Ala.Crim.App.1997), McFadden argues the collage or montage evidence was not “matter” because it is not a “live act, performance, or event.” See § 13A-12-190(12), Ala.Code 1975, a part of the Alabama Child Pornography Act § 13A-12-190 et seq., Ala.Code 1975 (“The ACPA”). Alternatively, McFadden argues that if the evidence is in fact “matter,” it is not “obscene”

As to the sufficiency of the evidence,

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 868 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

‘“In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[Wjhere there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).’ Granger [v. State], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

The two-count indictment in 2005 charging McFadden tracked §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975. It is well settled that the statute in effect at the time a crime is committed governs the prosecution of that offense. See Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005) (noting that “the law in effect at the time of the commission of the offense controls the prosecution”); see also Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990) (noting that, unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense). In 2005, § 13A-12-192(b), Ala.Code 1975, the statute under which McFadden was indicted and convicted, stated:

“Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.”

(Emphasis added.) In 2005, § 13A-12-197(a), Ala.Code 1975, provided, in pertinent part:

“Any person who knowingly films, prints, records, photographs or otherwise produces any obscene matter that contains a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.”

(Emphasis added.) “Obscene” was defined in 2005, in pertinent part, as follows:

“b. When used to describe matter that contains a visual reproduction of an act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, such term means matter containing such a visual reproduction that itself lacks serious literary, artistic, political or scientific value.”

§ 13A-12-190(13)(b), Ala.Code 1975 (emphasis added). The term “matter,” as used in this section in 2005, was defined as:

“[a]ny book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event.”

§ 13A-12-190(12), Ala. Code 1975. We note that, at the time of the charged offenses, “visual reproduction” was not defined in the relevant Code sections. See § 13A-12-190, Ala.Code 1975; § 13A-12-192(b), Ala.Code 1975, § 13A-12-197, Ala. Code 1975. “Genital nudity” is: “[t]he lewd showing of the genitals or pubic area.” § 13A-12-190(11), Ala.Code 1975. Because the term “lewd” is not defined by statute, it must be given its “ ‘natural, plain, ordinary, and commonly understood meaning.’ ” Perry v. State, 568 So.2d 389, 342 (Ala.Crim.App.1990), quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). “ ‘Lewd’ ” is defined as “ ‘[o]obscene, lustful, indecent, lascivious, lecherous.’ ” Perry, 568 So.2d at 342, quoting Black’s Law Dictionary 817 (5th ed.1979).

“A ‘lewd showing of the genitals’ does not require any overt act by the child depicted. The child depicted is not required to have assumed a sexually inviting manner, ... nor is it required that the child even be aware that the depiction is being produced_ ‘Lewdness,’ within ‘the context of the statute applied to the conduct of children ... is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles .... The picture of a child “engaged in [genital nudity]” ... as defined by [new § 13A-12-190(11) ] is a picture of a child’s sex organs displayed [lewdly] — that is, so represented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.’ ”

Poole v. State, 596 So.2d 632, 640 (Ala.Crim.App.1992). See also Lanham v. State, 888 So.2d 1283 (Ala.Crim.App.2004); Cole v. State, 721 So.2d 255 (Ala.Crim.App.1998). Additionally, § 13A-12-200.1(19), Ala.Code 1975, defines “produce” as to “[c]reate, make, write, file, produce, reproduce, direct, or stage.”

In examining the relevant statutes as they read at the time of the charged offenses and in considering the collage or montage exhibits, we also must apply the following principles of statutory construction and view the collages or montages in totality:

“ ‘ “[I]t is well established that criminal statutes should not be ‘extended by construction.’ ” ’ Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).
“ ‘A basic rule of review in criminal cases is that criminal statutes are to be strictly construed, in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“ ‘Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
“‘One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State ], 58 Ala. 358 (1877).
“‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.’

“Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).

“ ‘ “Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used .... ” United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205(952).’
“Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). ‘[T]he fundamental rule [⅛ ] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).’ Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The ‘rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused.” ’ Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).”

Ex parte Bertram, 884 So.2d 889, 891-92 (Ala.2003).

“ ‘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.
“ ‘Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning.’ Alabama Farm Bureau Mut. Casualty Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). The general rule of construction for the provisions of the Alabama Criminal Code is found in Ala. Code 1975, § 13A-1-6: ‘All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3.’ Among the purposes stated in § 13A-1-4 is that found in subsection (2): ‘To give fair warning of the nature of the conduct proscribed,’ ”

Carroll v. State, 599 So.2d 1253, 1264-65 (Ala.Crim.App.1992). In determining the proper application of a statute, we have a duty to “ ‘ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained’ ” Hunt v. State, 642 So.2d 999, 1028 (Ala.Crim. App.1993), aff'd, 642 So.2d 1060 (Ala.1994), quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985); see also Rutledge v. State, 745 So.2d 912 (Ala.Crim.App.1999).

The record reflects that, along with children’s clothing, including children’s underwear, toys, and other children’s items, collage or montage exhibits were introduced at trial. The collage or montage exhibits found in McFadden’s residence contained pictures or photographs of naked and clothed children cut from catalogs, magazines, and other print mediums juxtaposing adult nude body parts, including genitalia, often engaged in sexual acts. Some of the photographs superimposed what appeared to be children’s unclothed bodies with naked adult body parts.

Applying the rules of statutory construction set forth above to the statutes in effect at the time of the commission of the offenses by McFadden, given the reason and necessity for the “ACPA” and the purpose sought to be obtained by the ACPA, considering this Court’s decision in R.K.D., supra, and reviewing the collages or montages as a whole, we conclude that the collage or montage exhibits contain reproductions of genital nudity of children in violation of §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975. The collages or montages, which include pictures or photographs of unclothed young children combined with adult sexual acts, are clearly obscene and in violation of the conduct proscribed by the ACPA. See §§ 13A-12-190(12) and (13), Ala.Code 1975.

Moreover, R.K.D. is factually distinguishable from this case. In R.K.D., the dispositive fact was that in the materials there the children were either hand-drawn or were not naked. Here, the children were completely naked, displaying genital nudity in some of the pictures or photographs that were incorporated into collages or montages, thereby meeting the definitions of “obscene” and “matter” under §§ 13A-12-190(12) and (13), Ala.Code 1975. The fact that the reproductions were included in collages or montages did not lessen the pornographic nature of the pictures or photographs. Accordingly, the evidence presented at trial was sufficient to establish a prima face case of the possession and the production of obscene matter containing a visual reproduction of a person under the age of 17 years. Thus, we uphold McFadden’s convictions against his evidentiary arguments.

II.

McFadden next argues that the collages or montages are protected by the First Amendment of the United States Constitution. McFadden claims that New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), retain First Amendment protections for the collage or montage exhibits. The State counters that because the collage or montage evidence contained genital nudity, which amounted to child pornography, it should be afforded no First Amendment protection. This Court reviews such issues de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003).

In Lanham v. State, supra, this Court provided a history of the development of First Amendment doctrine regarding obscenity and child pornography and stated the following when considering whether depictions of child nudity in a videotape constituted protected expression:

“In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court established a three-part test for determining whether material is ‘obscene’ and therefore subject to state regulation. In New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the Court modified the Miller test to allow states greater leeway in regulating child pornography. After Ferber was announced, the Alabama Legislature rewrote the child pornography statutes, including § 13A-12-190(13), Ala.Code 1975, which defines the term ‘obscene.’
“Under the new definition, the Miller test applies only to depictions of ‘breast nudity’; it does not apply to depictions of the other six forms of sexual conduct specified in § 13A-12-197, including ‘genital nudity.’ Poole v. State, 596 So.2d 632, 638 (Ala.Crim.App.1992). ‘‘Under new § 13A-12-190(13), material depicting children engaged in acts involving these forms of sexual conduct need only lack “serious literary, artistic, political, or scientific value” ’ to be proscribed. Id. ‘ “Obscene,” as applied to these materials, simply does not mean “obscene under the Miller test.” ’ 596 So.2d at 639.
“Section 13A-12-190(11) defines ‘genital nudity’ as ‘[t]he lewd showing of the genitals or pubic area.’
“In New York v. Ferber, 458 U.S. at 762, 102 S.Ct. 3348, the United States Supreme Court recognized that states have a ‘compelling’ interest in safeguarding the physical and psychological well-being of minors and in preventing their sexual exploitation and abuse. The Court noted that it was ‘unlikely that visual depictions of children ... lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.’ [Universities Res. Assn. v. Coutu,] 450 U.S. [754] at 762-63, 101 S.Ct. 1451 [67 L.Ed.2d 662 (1981) ]. In Ex parte Felton, the Alabama Supreme Court reached a similar conclusion: ‘ “[W]e believe that, like the promotion stage of the child pornography cycle addressed in Ferber, the value of permitting possession of ‘photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis.’ ” ’ Ex parte Felton, 526 So.2d 638, 641 (Ala.1988), quoting State v. Meadows, 28 Ohio St.3d 43, 49-50, 503 N.E.2d 697, 703 (1986), quoting in turn Ferber, 458 U.S. at 762, 102 S.Ct. 3348.”

888 So.2d at 1285-87.

After Ferber, the Supreme Court upheld a statute criminalizing the mere possession of child pornography. See Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (“[T]he materials produced by child pornographers permanently record the victim’s, abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come.”). In Osborne, supra, the Supreme Court recognized that it was “surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” 495 U.S. at 109-10. Osborne also observed that, after the Court’s decision in Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), its earlier and seemingly inapposite holding “ ‘the value of permitting child pornography has been characterized as exceedingly modest if not de minimis.’ Osborne, 495 U.S. at 108, quoting Ferber, 458 U.S. at 762.

As with obscenity, the First Amendment does not protect pornography involving “actual” children. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Ferber, supra. Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, that is, images created using actual minors. See 18 U.S.C. § 2252 (1994 ed.). The federal Child Pornography Prevention Action of 1996 (“CPPA”) retained that prohibition at 18 U.S.C. § 2256(8)(A) and added three other prohibited categories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), were at issue in Ashcroft. 535 U.S. at 240-41. (“The CPPA ... is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U.S.C. §§ 1460-1466.... [T]he CPPA seeks to reach beyond obscenity ... [and] would reach visual depictions, such as movies, even if they have redeeming social value.”). More particularly, in Ashcroft, the Supreme Court considered whether 18 U.S.C. §§ 2256(8)(B) and (D) could withstand constitutional scrutiny. The litigants did not challenge, nor did the Court speak to, the constitutionality of § 2256(8)(C), which speaks to the conduct involved in this case.

As to the sort of images embraced by § 2256(8)(B) of the CPPA, the Court noted that they “do not involve, let alone harm, any children in the production process.” Ashcroft, 535 U.S. at 241. Consequently, unless those images are also obscene, “virtual pornography” of that particular type is protected by the First Amendment. 535 U.S. at 240 (“As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene.”).

McFadden’s collages or montages are not the sort of “virtual pornography” described by the Court as falling within the scope of section 2256(8)(B), because these collages or montages involve real children. Images similar to those at issue here are addressed in § 2256(8)(C) of the CPPA, which “prohibits a more common and lower tech means of creating virtual images, known as computer morphing.” Ashcroft, 535 U.S. at 242. Similar to McFadden’s collages or montages, computer morphing involves altering photographs of actual children to make it appear that those children are engaged in sexually explicit conduct. See 535 U.S. at 242 (describing “computer morphing” as follows: “Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity”).

While the Ashcroft Court did not specifically address the constitutionality of § 2254(8)(C)’s ban on that particular type of “virtual pornography,” it did note, in dictum, that “[a]lthough morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber.” Ashcroft, 535 U.S. at 242. That dictum strongly suggests that McFadden’s collages or montages are not protected by the First Amendment.

Almost immediately after the Ashcroft decision was handed down, Congress crafted responsive legislation in 2003 (“the PROTECT Act”), which defined child pornography to include, in addition to images of “real” children engaged in sexually explicit conduct, see § 2256(8)(A), digital or computer-generated images that are “indistinguishable” from images of actual minors engaging in sexually explicit conduct, see § 2256(8)(B), and visual depictions that have been created or modified to appear as though an identifiable minor is engaged in sexually explicit conduct. See § 2256(8)(C). The definition of “morphed” child pornography as discussed in Ashcroft remained unchanged as between the CPPA and the PROTECT Act. See id.

McFadden’s collages or montages involved genital nudity and pornographic images of real children. In that regard, they implicate concerns identified in both Ferber and Ashcroft, insofar as a lasting record has been created of those children showing genital nudity and seemingly engaged in sexual conduct. See Felton v. State, 526 So.2d 635, 637 (Ala.Crim.App.1986), affirmed, 526 So.2d 638 (Ala.1988) (recognizing that “[t]he State’s interest in protecting its children from cruel, physical, emotional, and physiological abuse occasioned by forcing a child to be the subject of child pornography far outweighs the appellant’s interest in possessing such materials”). First, as noted above, the Supreme Court has not addressed whether collages or montages of the sort possessed and produced by McFadden are protected by the First Amendment. See Ashcroft, 535 U.S. at 242 (“Respondents do not challenge this provision, and we do not consider it.”). In fact, the Supreme Court suggested just the opposite. See, e.g., Ferber, supra. Whereas the Supreme Court considered the mere possession of virtual child pornography a “victimless” crime, the same cannot be said of McFadden’s possession and production of the pictures or photographs incorporated into the collages and montages. Although in the pictures being contested by McFadden live naked children were not made to engage in the particular activities displayed in the photographs, the images of real children were edited to appear as though the children were engaged in genital nudity and often sexual conduct. See § 13A-12-190(13), Ala.Code 1975. Although the children in the pictures or photographs incorporated into the collages and montages may belong to a different class of victims than children made to actually engage in sexual behavior in other forms of child pornography, the children in the collage or montage pictures or photographs are nonetheless actual identifiable human victims, rather than computer-generated virtual images as discussed in Ashcroft. The underlying concerns that informed the Ferber decision, therefore, are implicated by the facts of this case in a manner in which they were not in Ashcroft. See Felton, supra (recognizing that “[t]he State’s interest in protecting its children from cruel, physical, emotional, and physiological abuse occasioned by forcing a child to be the subject of child pornography far outweighs the appellant’s interest in possessing such materials”). See also Rutledge, supra (construing child-pornography statute prohibiting possession of a “photographic or other visual reproduction” to include images stored on computers, computer discs, and the Internet). Displays of genital nudity of actual children, when presented in collage or montage form, as in this case, constitute child pornography and warrant no First Amendment protection. Accordingly, McFadden is not entitled to any relief on this claim.

III.

Based on the principles espoused by Ashcroft, supra, and its progeny, McFadden next argues that the statutes under which he was convicted, §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975, are unconstitutionally overbroad.

As this Court has consistently noted, the overbreadth doctrine applies to activities that are protected from prosecution by the First Amendment:

“ ‘ “ ‘The overbreadth doctrine derives from the First Amendment, see Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and serves to invalidate legislation so sweeping that, along with its allowable proscriptions, it also restricts constitutionally-protected rights of free speech, press, or assembly, see - e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).’ ” ’
“Elston v. State, 687 So.2d 1239, 1244 (Ala.Crim.App.1996) (quoting McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990)); accord Hyshaw v. State, 893 So.2d 1239, 1242 (Ala.Crim.App.2003).”

Lansdell v. State, 25 So.3d 1169, 1174 (Ala.Crim.App.2007), cert. denied, 25 So.3d 1183 (Ala.2009).

“According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The overbreadth doctrine is “strong medicine” to be used sparingly and only as a last resort. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). It should be ' used only when the overbreadth is not only real, but also “substantial ... judged in relation to the statute’s plainly legitimate sweep.” Osborne, 495 U.S. at 112. A challenge to a statute on the grounds of overbreadth is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [a]ct would be valid.” United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The fact that a statute might, under the right set of circumstances, be unconstitutional “is insufficient to render it wholly invalid, since we have not recognized an ‘overbreath’ doctrine outside the limited context of the First Amendment.” 481 U.S. at 745.

As they read in 2005, the challenged statutes proscribed “a visual reproduction of a child engaged in genital nudity.” See § 13A-12-190(13), Ala.Code 1975; §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975. McFadden’s collages or montages are not protected by the First Amendment because they involved naked images of real or actual children. They implicate concerns identified in Ferber, supra, and Ashcroft, supra, and their progeny because a lasting record has been created of those children engaged in genital nudity. See, e.g., Perry v. State, supra (applying the holding in Ferber, and finding the ACPA pertaining to “breast nudity” not overbroad and constitutional); Fel-ton, supra (recognizing that a defendant has no constitutional right to possess child pornography in his home); Dannelley v. State, 397 So.2d 555, 567 (Ala.Crim.App.), writ denied, 397 So.2d 577 (Ala.1981), cert. denied, 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981) (providing that the evil the legislature intended to remedy in the ACPA was the sexual abuse of innocent and helpless children in front of a camera).

Furthermore, the legislature intended to prohibit the possession, production, and dissemination of child pornography in Alabama “by any means.” Rutledge, 745 So.2d at 916. Following Ferber, the legislature amended the ACPA, codified at §§ 13A-12-190 through -197, Ala.Code 1975, to further define and prohibit child pornography and to further provide for the trial of cases involving it. See Poole, supra. “It is evident that the Legislature, recognizing the need to protect innocent children from the dangers of child pornography, enacted broad legislation prohibiting the visual depictions of children involved in any type of sexual act.” Rutledge, 745 So.2d at 916.

We answer the question whether the challenged statutes overreach in the negative. McFadden urges us to hold that the collages or montages fail to depict visually sexual conduct by children or to memorialize acts of sexual abuse by children as required by Ferber, supra, and its progeny. McFadden’s brief, at p. 52. He claims there was never sexual abuse of innocent and helpless children in front of a camera. McFadden’s brief at p. 56. He asserts the collages or montages are merely images pasted together that convey the idea of sexually explicit conduct. McFadden’s brief at p. 60. We find McFadden’s argument unpersuasive, and we reject it. Both Ferber and Ashcroft emphasized that children are harmed not only through the actual production of pornography, but also by the knowledge of its continued circulation. We further note that the United States Supreme Court upheld a statute criminalizing the mere possession of child pornography. Osborne, 495 U.S. at 110-11. (“[T]he materials produced by child pornographers permanently record the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come.”). The Alabama Supreme Court and this Court have consistently held likewise. See Felton; Rutledge, Perry, Dannelley.

Thus, §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975, which criminalize the possession and the production of collage or montage images of child pornography or child genital nudity created without filming or photographing actual sexual conduct on the part of an identifiable minor, but edited to appear as though the children are engaged in sexual conduct, do not violate the First Amendment. The definition of “obscene” and “matter” “precisely trackfs] the material held constitutionally proscribable in Ferber and Miller and its progeny: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.” Williams, 553 U.S. at 293, citing Ashcroft, 585 U.S. at 245-246. (First Amendment does not protect obscenity or pornography produced with actual children). These prohibitions fall well within constitutional bounds because “[i]t is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is ‘compelling.’ ” Ferher, 458 U.S. at 756-57. Accordingly, McFadden’s over-breadth challenge must also fail.

IV.

Lastly, McFadden argues the collage or montage exhibits were improperly admitted into evidence. He also argues the trial court erred in admitting items seized from his residence that are only generally characteristic to children, such as children’s clothing and children’s books. We conclude that the trial court did not abuse its discretion by admitting the collage or montage evidence of child pornography and the other children’s items that were contested.

“ ‘The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.’ ” Barrett v. State, 918 So.2d 942, 946 (Ala.Crim.App.2005), quoting Ex parte hoggins, 771 So.2d 1093, 1103 (Ala.2000).

Rule 401, Ala.R.Evid., defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Although relevant evidence is admissible, Rule 402, Ala.R.Evid., it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, Ala. R.Evid.

“To be competent and admissible, evidence must be relevant — that is, evidence must tend to prove or disprove the issues before the jury. Rule 401, Ala. R. Evid. The determination of the relevancy and admissibility of evidence rests largely in the sound discretion of the trial judge. The trial judge is obliged to limit the evidence to that evidence that would be necessary to aid the fact-finders in deciding the issues before them, and to preclude evidence that is too remote, irrelevant, or whose prejudice outweighs its probative value. Loggins v. State, 771 So.2d 1070, 1077-78 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000).”

Harrington v. State, 858 So.2d 278, 293 (Ala.Crim.App.2002).

McFadden filed motions in limine seeking to exclude various items, including the collages or montages, and children’s underwear, clothing, books, toys, newspaper articles and clippings reporting kidnapped and/or murdered children, and other children’s items. The trial court held a hearing and admitted most of the collages or montages and children’s items and excluded others when objected.to during trial. McFadden defended the charges against him by disclaiming knowledge of the presence of child pornography and children’s items and by arguing that the collages or montages failed to constitute child pornography in violation of the First Amendment.

The trial court properly admitted the items. The collage or montage exhibits and the children’s items admitted were relevant to prove or disprove possession and production of child pornography. The collages and montages and children’s items were intermingled throughout McFadden’s house. Especially given that the State had to prove that McFadden “knowingly” possessed and produced child pornography and given his defenses of lack of knowledge and First Amendment protection, many of the items constituted physical evidence providing the jury with context. The jury is entitled to know the setting of the case and cannot be expected to make its determination without knowledge of the time, place, and circumstances of the acts that form the basis of the charge. See, e.g., Dean v. State, 54 Ala.App. 270, 807 So.2d 77 (Ala.Crim.App.1975) (permitting the defense psychiatrist, on cross-examination, to testify as to the qualifications and training of an absent psychiatrist was not improper, as the jury was entitled to know why the witness relied on the absent psychiatrist’s reports and also the basis of such reliance).

Moreover, any error in the admission of this evidence is harmless because many of the items could properly enter under Rule 404(b), Ala.R.Evid., as showing knowledge or intent. The more child pornography and children’s items that were present, the more likely McFadden had knowledge. Additionally, investigators often look for children’s items and child erotica as indicators of the presence of child pornography. These items show that McFadden acquired and displayed children’s items, which increases the probability that he knowingly possessed and produced child pornography. McFadden may disclaim knowledge and may argue that the collages and montages were afforded First Amendment protection, but the State should be able to introduce highly probative evidence of related acts that he knew of child pornography.

McFadden’s contention that the pictures or photographs should have been redacted and introduced piecemeal is likewise without merit. The composition of the collages or montages goes to the crux of the case. We find no abuse of discretion in the trial court’s admission of the collage or montage evidence or the children’s items.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . The oral pronouncement at the sentencing hearing and the sentencing order differ. (C. 82-87; R. 281.) However, it appears that, pursuant to Alabama’s Habitual Felony Offender Act, the trial court sentenced McFadden to life imprisonment on the production-of-obscene-matter charge and 30 years’ imprisonment on the possession-of-obscene-matter charge, the sentences to run concurrently. See § 13A-5-9 et seq., Ala.Code 1975.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The legislature amended § 13A-12-192(b) effective June 1, 2006, by substituting the clause "that contains a visual depiction" for the phrase "containing a visual reproduction.”

      . The legislature amended § 13A-12-197 effective June 1, 2006, and substituted the word • "depiction” for the word "reproduction.”

      . The legislature amended § 13A — 12—190(13) effective June 1, 2006, in subparagraph b. by substituting the words "is a depiction” for the phrase "contains a visual reproduction.”

      . The legislature amended the definition of "matter” in § 13A — 12—190(12) effective June 1, 2006. The definition now reads: "Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture, video cassette, tape, record, digital video disc (DVD), video compilation, or electronic depiction in a comparable format, or an image, file, download, or other content stored, or reproduced by using a computer or electronic device or other digital storage, or any other thing, articles, or materials that either are or contain a photographic or other visual depiction of a live act, performance, or event."

      .The legislature added the definition of "visual depiction” in § 13A— 12 — 190(15) effective June 1, 2006 when it substituted "depiction” for "reproduction.” "Visual depiction” is: "[a] portrayal, representation, illustration, image, likeness, or other thing that creates a sensory impression, whether an original, duplicate, or reproduction.” § 13A — 12—190(15), Ala.Code 1975.

        . For example. State’s Exhibit 11 includes various cut-out photographs of clothed and unclothed young children combined with photographs of adult genitalia and photographs of the performance of adult sexual intercourse and oral sex. Some of the collages or montages in State’s Exhibit 11 include sexually explicit verbiage cut from magazines that is pasted alongside cut-out children's photographs and cut-out photographs of adult sexual acts and body parts. State’s Exhibits 11 and 12 also include several photographs of the genitalia of what appear to be young children, which could have been taken from an anatomic, scientific, or medical reference, affixed above or near the cut-out photographs of adult genitalia and sexual acts. State’s Exhibit 13 showed collages or montages of adult males and females having sexual intercourse and oral sex juxtaposed with photographs of young children. (R. 103-13, 153-59, 164-65, 199-203.)

      . We note that the statutes forming the basis for the charged offenses in Ferber, Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), and Ashcroft prohibited the possession or distribution of child pornography.

      . Section 2256(8)(B) prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that "is, or appears to be, of a minor engaging in sexually explicit conduct.” 535 U.S. at 241.
      Section 2256(8)(C) of the CPPA covered any visual depiction modified to appear as though an actual minor was engaged in sexually explicit activity. In Ashcroft, the Supreme Court described this provision as prohibiting a more "common and lower tech means of creating virtual images,” known as "computer morphing.” 535 U.S. at 242. In lieu of creating original images, "morphing” allowed pornographers to "alter innocent pictures of real children so that the children appear to be engaged in sexual activity.” Id.

      Section 2256(8)(D) defined child pornography to include any sexually explicit image that was "advertised, promoted, presented, described, or distributed in such a manner that convey[ed] the impression” that it depicted "a minor engaging in sexually explicit conduct.” "This provision prevent[ed] child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography.” 535 U.S. at 242.

      . In Ferber, the Court upheld the constitutionality of New York’s statutory ban on the distribution of materials that depict a sexual performance by a child. In reaching the conclusion that child pornography is outside the scope of the protections afforded by the First Amendment, the Court noted that the "prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” 458 U.S. at 757. In support of that conclusion, the Court observed: "The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children.... [T]he materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.” 458 U.S. at 759.

      . Claim IV in McFadden’s brief.

      . Claim V in McFadden’s brief.


source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Petitioner, v. DEVON NEIGHBORHOOD ASSOCIATION, INC., d/b/a Devon Neighborhood & Condominiums A-J Association, Inc., Respondent.
    No. SC10-347.
    Supreme Court of Florida.
    June 30, 2011.

      Jeffrey T. Kuntz, Philip E. Ward, Roland E. Schwartz, and Evan D. Appell of Gray Robinson, P.A., Fort Lauderdale, FL, for Petitioner.
    Daniel S. Rosenbaum, John M. Siracusa, Richard C. Valuntas and Mark G. Keegan of Rosenbaum Mollengarden Janssen and Siracusa, PLLC, West Palm Beach, FL, for Respondent.
   LABARGA, J.

Florida Insurance Guaranty Association, Inc., seeks review of the decision of the Fourth District Court of Appeal in Florida Insurance Guaranty Ass’n v. Devon Neighborhood Ass’n, 33 So.3d 48 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with the decisions of this Court in Old Port Cove Holdings, Inc. v. Old Port Cove Condominium Ass’n One, Inc., 986 So.2d 1279 (Fla.2008), and Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999). FIGA also asserts that the decision of the Fourth District expressly and directly conflicts with this Court’s decision in Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla.2010), which was issued after the Fourth District’s decision below. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue in this case concerns the proper test to be utilized by a court when determining whether a statute may be applied retroactively, in this case to a contract of insurance. As we explain below, because we conclude that the district court in this case misapplied the test for retroac-tivity, we quash the decision of the Fourth District below.

BACKGROUND

This case arose from certain hurricane damage claims made by Devon Neighborhood Association, Inc., d/b/a Devon Neighborhood & Condominiums A-J Association, Inc. (“Devon”), under a 2004 insurance policy issued by Devon’s original insurer, Southern Family Insurance (“Southern Family”). As explained more fully below, Southern Family became insolvent and the Florida Insurance Guaranty Association (“FIGA”) then became obligated to respond to certain claims made under that insurance policy.

FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent. See § 631.51, Fla. Stat. (2010); O’Malley v. Fla. Ins. Guar. Ass’n, 257 So.2d 9, 10 (Fla.1971). Under Florida’s statutory insurer liquidation system, when an insurer becomes insolvent, FIGA becomes obligated to respond to covered claims that arise prior to adjudication of the insurer’s insolvency and within a specified period after insolvency. Jones v. Fla. Ins. Guar. Ass’n, 908 So.2d 435, 442 (Fla.2005); see § 631.54(3), Fla. Stat. (2010) (defining “covered claim”); § 631.57, Fla. Stat. (2010) (stating scope of FIGA’s powers and duties). “FIGA is strictly a creature of statute.” Fla. Ins. Guar. Ass’n v. All the Way with Bill Vernay, Inc., 864 So.2d 1126, 1129 (Fla. 2d DCA 2003). “Thus, ‘the statutory language defines the extent of FIGA’s obligations. FIGA is not responsible for claims against an insurer that do not fall within FIGA’s statutory obligations.’” Fla. Ins. Guar. Ass’n v. Petty, 44 So.3d 1191, 1194 (Fla. 2d DCA 2010) (quoting All the Way with Bill Vernay, Inc., 864 So.2d at 1130), review granted, 53 So.3d 230 (Fla.2011). The FIGA act is expressly designed to protect the insured, rather than the insurance industry. See Jones, 908 So.2d at 442. However, “the full gamut of a defunct insurance company’s liabilities was not intended to be shifted onto FIGA.” Fla. Ins. Guar. Ass’n, Inc. v. Olympus Ass’n, Inc., 34 So.3d 791, 794 (Fla. 4th DCA 2010) (quoting Williams v. Fla. Ins. Guar. Ass’n, Inc., 549 So.2d 253, 254 (Fla. 5th DCA 1989)).

In this case, Devon timely filed a claim with its insurer Southern Family after the condominium was damaged during Hurricane Wilma in October 2005. Devon submitted a sworn proof of loss claim in February 2006. However, Southern Family became insolvent and was placed in receivership in April 2006. FIGA then assumed responsibility for Devon’s claims, and Devon filed a second proof of loss claim. It is undisputed that Southern Family paid Devon approximately $2.5 million, and FIGA subsequently paid Devon an additional $1.7 million. See Fla. Ins. Guar. Ass’n v. Devon, 33 So.3d at 50. The record reflects that in January 2008, Devon submitted supplemental claims to FIGA totaling $4,800,286.84, and shortly thereafter, on February 11, 2008, filed suit against FIGA.

FIGA answered the complaint and, in an affirmative defense, demanded an appraisal of the claimed loss under the appraisal provision contained in the 2004 insurance policy between Devon and Southern Family. The appraisal provision allowed either party to demand an appraisal of a claimed loss. FIGA also sent a letter demanding an appraisal under the policy provision, filed a motion to compel appraisal, and moved to stay the action pending the appraisal. The appraisal provision in the insurance contract at issue sets forth a procedure for resolving disputes that is somewhat similar to an arbitration process, providing that where the parties disagree on the value of the property or the amount of the loss, either party may make a written demand for an appraisal of the loss. Under this appraisal provision, each party will select an appraiser and the two appraisers will select an umpire. Also under the express terms of the policy, “[a] decision agreed to by any two will be binding.”

Devon objected to being required to participate in the appraisal process because it had not been provided notice of the availability of mediation — a notice requirement that was imposed on commercial residential insurers, such as Southern Family, by a 2005 amendment to section 627.7015, Florida Statutes, a provision of the Florida Insurance Code. The trial court agreed with Devon and on January 15, 2009, denied FIGA’s motion to compel an appraisal. FIGA then took a nonfinal appeal to the Fourth District under Florida Rule of Appellate Procedure 9.130(3)(C)(iv), which was amended effective January 1, 2009, to provide for the appeal of nonfinal orders regarding entitlement to an appraisal under an insurance policy. See In re Amendments to Fla. Rules of Appellate Procedure, 2 So.3d 89, 90 (Fla.2008).

On appeal, the Fourth District affirmed, holding that section 627.7015, Florida Statutes, as amended in 2005, applied retroactively to Devon’s 2004 contract of insurance, including the amendment to section 627.7015(7) barring the insurer from exercising its right to an appraisal if the insurer does not give notice of mediation under subsection (2) of the statute. Because Devon had not been given notice of the availability of mediation, the district court held that section 627.7015(7) applied to bar FIGA from availing itself of the appraisal process provided in the policy. Thus, we turn next to a discussion of the 2005 amendments to section 627.7015, Florida Statutes.

Section 627.7015, Florida Statutes

Section 627.7015 was first enacted in 1993. See ch. 93-410, § 20, Laws of Fla. It provided for alternative dispute resolution of claims made under homeowners’ residential insurance policies before commencing the appraisal process that most homeowners’ policies required. See § 627.7015(1), Fla. Stat. (1994 Supp.). From its inception, the statute required that when a first-party claim is filed, the homeowner’s residential insurer shall notify the claimant of the right to participate in the mediation program provided in the statute. See § 627.7015(2), Fla. Stat. (1994 Supp.). The statute was amended in 2005 to expand its scope, for the first time, to “commercial residential insurance policies” such as Devon’s condominium association policy in this case. See ch. 2005-111, § 15, Laws of Fla. Section 627.7015 was also amended in 2005 to provide that an insurer — now including a commercial residential insurer — which fails to give the notice of mediation required by subsection (2) is barred from insisting that the insured participate in the appraisal process provided in the insurance policy as a precondition to suit. The pertinent provisions of the statute, with the 2005 amendment language underlined, are set forth below:

Section 15. Effective July 1, 2005, subsections (1) and (7) of section 627.7015, Florida Statutes, are amended, and subsection (2) of that section is reenacted, to read:
627.7015 Alternative procedure for resolution of disputed property insurance claims.—
(1) PURPOSE AND SCOPE. — This section sets forth a nonadversarial alternative dispute resolution procedure for a mediated claim resolution conference prompted by the need for effective, fair, and timely handling of property insurance claims. There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner’s and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time consuming adversarial process prior to litigation. The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process. Before resorting to these procedures, insureds and insurers are encouraged to resolve claims as quickly and fairly as possible. This section is available with respect to claims under personal lines and commercial residential policies for all claimants and insurers prior to commencing the appraisal process, or commencing litigation ....
(2) At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section. The department [of insurance] shall prepare a consumer information pamphlet for distribution to persons participating in mediation under this section.
(7) If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.

Ch.2005-111, § 15, at 1092, Laws of Fla. The stated effective date of the amendments to section 627.7015 was July 1, 2005.

The 2005 amendments to section 627.7015 made two important changes to existing law: First, the amendments applied the preexisting mediation alternative and notice requirement, as well as the requirement that the insurer pay for mediation, to “commercial residential insurance policies.” Second, the amendments added the requirement that if the insurer fails to give notice of mediation under subsection (2), the insured “shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action.” § 627.7015(7), Fla. Stat. (2005). The insurance policy at issue in this case, issued in 2004 by Southern Family Insurance to Devon, contained such an appraisal clause in section E, which provided as follows:

2. Appraisal
If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.

If there is an appraisal, we will still retain our right to deny the claim. FIGA argued in the trial court that the 2005 amendments could not be applied retroactively to claims made under Devon’s 2004 insurance policy, but the trial court disagreed, applied section 627.7015(7) as amended, and refused to enforce the appraisal provision.

On appeal, the Fourth District also held that the 2005 amendments applied retroactively to the 2004 contract of insurance and that FIGA was bound by Southern Family’s failure to give the notice required in the amended statute. The district court thus affirmed the trial court’s denial of the motion to enforce the loss appraisal provision of the contract. As explained below, because the district court did not apply the two-prong test for retroactivity that is mandated by this Court’s controlling precedent, and instead based its holding only on whether retroactive application would be constitutional, and because there is no clear evidence that the Legislature intended the 2005 amendments to apply retroactively, we quash the decision of the district court.

The Decision Under Review

FIGA argued in the district court that the trial court erred in not enforcing the insurance contract right to appraisal because section 627.7015, as amended in 2005, did not apply retroactively to commercial residential policies issued in 2004. The district court proceeded to analyze the retroactivity issue solely in terms of whether retroactive application would unconstitutionally impair the obligations of contract, stating:

Similar to the federal constitutional contract clause, Article I, Section 10 of the Florida Constitution, prohibits the enactment of any “law impairing the obligation of contracts.” In Pomponio, after reviewing the evolution of contract clause analysis by the United States Supreme Court from strict prohibition to the use of a balancing approach, the Florida Supreme Court itself adopted a balancing approach to determine whether a statute amounted to a constitutionally impermissible impairment of contract.

Fla. Ins. Guar. Ass’n, Inc., 33 So.3d at 51. The Fourth District applied the balancing test set forth in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774, 780 (Fla.1979), and held that the 2005 amendments to section 627.7015 could be applied constitutionally in a retroactive manner to the 2004 contract of insurance. 33 So.3d at 53. FIGA contends that in analyzing the retroactivity question solely in terms of whether the statute may be constitutionally applied retroactively to the 2004 contract, the Fourth District misapplied controlling precedent that mandates a two-prong test for determining retroac-tivity of a statute, citing Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999), Old Port Cove Holdings, Inc. v. Old Port Cove Condominium Ass’n One, Inc., 986 So.2d 1279 (Fla.2008), and this Court’s subsequent decision in Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla.2010). Thus, we turn to a discussion of these authorities.

ANALYSIS

FIGA contends that the district court failed to apply the proper test for retroactivity by ignoring the first prong— legislative intent — and proceeding directly to the second prong — the constitutionality of retroactive application. Our review of this question of law is de novo. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003). As explained below, we agree with FIGA that our precedent establishes a two-prong test for the retroactivity analysis and that the district court misapplied this precedent in analyzing the question of retroactivity based solely on the second prong of the test. It is for this reason that we quash the decision below.

In Chase Federal, cited by FIGA for conflict, we made clear that two interrelated issues arise when the question of a statute’s retroactive application is before the Court — the court must first determine if there is “clear evidence of legislative intent to apply the statute retrospectively.” Chase Federal, 737 So.2d at 499. Once the first inquiry is made, and only “[i]f the legislation clearly expresses an intent that it must apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.” Id. (citing State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995)); see also Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 487 (Fla.2008) (“[A] retroac-tivity analysis is two-pronged, asking first if the relevant provision provides for retroactive application, and second if such application is constitutionally permissible.”).

In Old Port Cove Holdings, Inc. v. Old Port Cove Condominium Ass’n One, Inc., 986 So.2d 1279 (Fla.2008), we again held that in determining if a statute is retroactive, two factors are to be considered. Id. at 1284. The first factor is whether the statute itself expresses an intent that it apply retroactively, and if so, the second factor is whether retroactive application is constitutional. Id. at 1284. We also made clear in Old Port Cove that if the plain language of the statute does not evince an intent that the statute apply retroactively, the Court “need not address the second prong.” Id. (citing Memorial Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So.2d 438, 441 (Fla.2001)).

The importance of legislative intent in the retroactivity analysis was evident as early as 1887 when this Court stated, “It is a rule of construction that a statute shall not be given a retrospective effect, unless its terms show clearly that such an effect was intended.” McCarthy v. Havis, 23 Fla. 508, 2 So. 819, 821 (1887). In 1920, this Court again stated, “A statute is not to be given retrospective effect, unless its terms show clearly that such an effect was intended.” In re Seven Barrels of Wine, 79 Fla. 1, 83 So. 627, 632 (1920). “The rule that statutes are not to be construed retrospectively, unless such construction was plainly intended by the Legislature, applies with peculiar force to those statutes the retrospective operation of which would impair or destroy vested rights.” Id. We further explained the general rule in La-foret, where we stated that “a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but ... a procedural or remedial statute is to operate retrospectively.” Laforet, 658 So.2d at 61. However, we cautioned in Chase Federal that' “if a statute accomplishes a remedial purpose by creating new substantive rights or imposing new legal burdens, the presumption against retroactivity would still apply.” Chase Federal, 737 So.2d at 500 n. 9.

In the present case, the statute in effect in 2004 when the policy was issued did not deprive a commercial residential insurer of its contractual right to require an appraisal of a claimed loss; the statute did not affect commercial residential insurance policies in 2004. The 2005 amended statute extended its reach to commercial residential insurers, requiring them to pay the cost of mediation and imposing the notice requirement on them. The amendments further imposed a new penalty on both commercial residential insurers as well as homeowners’ residential insurers— the loss of the right to the contractual appraisal if the insurer fails to give notice of the mediation alternative. Thus, section 627.7015 as amended in 2005 cannot be characterized as simply procedural or remedial, but was clearly substantive. Therefore, the presumption against retroactive application of the substantive amendments to section 627.7015 applies in this case.

The presumption against retroactive application is a well-established rule of statutory construction that is appropriate in the absence of an express statement of legislative intent because

a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a requirement allocates to [the legislature] responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.

Arrow Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla.1994) (bracketed material in original) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 272-73, 114 S.Ct. 1488, 128 L.Ed.2d 229 (1994)). The presumption is rebutted by clear evidence of legislative intent. Chase Federal, 737 So.2d at 500. Thus, we have consistently required the first prong of a retroactivity analysis to inquire into whether there is clear evidence of legislative intent.

In a case decided after the Fourth District’s decision below, Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla.2010), we again set forth the two-prong test for retroactivity: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Id. at 877. We determined in Menendez that the Legislature clearly intended that the amendment in that case, which imposed additional presuit notice requirements and made other changes affecting a preexisting contract of insurance, be applied retroactively. Id. at 876. However, because we also concluded in Menendez that the amendment was substantive and imposed penalties for noncompliance, we held that the statute could not be applied retroactively. Id. at 880.

Devon contends that the two-prong test set forth in Old Port Cove, Chase Federal, and Menendez is not applicable in this case and that it was proper for the district court to look only at the question of whether retroactive application would be constitutional under the balancing test set forth in Pomponio. We reject this argument that Pomponio dispenses with the first prong of the test for retroactivity. Our controlling precedent has required, and still requires, that the court first determine if there is clear legislative intent for retroactive application of the statute. When we decided Pomponio, we had already ruled that the statute at issue was intended by the Legislature to be applied retroactively. See Pomponio, 378 So.2d at 775 n. 3 (noting that the Court specifically held in Century Village, Inc. v. Wellington Condominium Ass’n, 361 So.2d 128, 132 (Fla.1978), that the statute at issue “was intended by the Legislature to be applied retroactively”). For that reason, there was no need for the Court in Pomponio to again engage in an inquiry into whether the Legislature intended for the statute to be applied retroactively.

Our precedent makes abundantly clear that in determining the question of retro-activity of a legislative enactment, the court must apply the two-prong test — beginning with a search for clear evidence of legislative intent for retroactivity. The Fourth District in the present case did not inquire into whether there existed clear legislative intent for retroactive application of the 2005 amendments contained in section 627.7015. Instead, the district court proceeded directly to the second inquiry concerning whether retroactive application would be constitutional. Because the first prong of the test for retroactivity requires the court to determine if there is clear legislative intent to apply the 2005 amendments to section 627.7015 retroactively, we examine that question next.

In the present case, the text of the amendment itself is silent as to its forward or backward reach. However, the enacting law specifically states that the amendments to section 627.7015 are to be effective July 1, 2005. See ch.2005-111, § 15, at 1092, Laws of Fla. The Legislature also provided differing effective dates for various other sections contained in chapter 2005-111, thus indicating careful thought by the Legislature as to when the various amendments would be given effect. We have noted that the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law. See State Dep’t of Rev. v. Zuckerman-Vernon Corp., 354 So.2d 353, 358 (Fla.1977). Nevertheless, where there is “clearly expressed” legislative intent for retroactive application, there is no “unbending principle that the inclusion of an effective date in a statute will always supersede the clearly expressed legislative intent that the statute be applied retroactively.” Chase Federal, 737 So.2d at 502. In the present case, however, we find no “clearly expressed legislative intent” to apply section 627.7015, as amended in 2005, retroactively.

Devon contends that a review of chapter 2005-111, Laws of Florida, in its entirety indicates that the amendments to section 627.7015 are intended to be retroactive. Indeed, the Court may engage in statutory construction as part of the analysis to determine if the terms of the statute and the purpose of the enactment indicate retroactive application. Chase Federal, 737 So.2d at 500 (holding that where there is no express legislative command that the statute is retroactive, “both the terms of the statute and the purpose of the enactment must be considered” in determining if the statute is retroactive); see also Fla. Hosp. Waterman, Inc., 984 So.2d at 488 (same). This examination may also include consideration of the language, structure, purpose, and legislative history of the enactment. See Chase Federal, 737 So.2d at 500 (citing United States v. Olin Corp., 107 F.3d 1506, 1513 (11th Cir.1997)). However, we disagree with Devon that anything in the language, structure, purpose, or legislative history of chapter 2005-111 provides clear evidence of legislative intent to apply the 2005 amendments to section 627.7015 retroactively.

Devon argues that intent for ret-roactivity is shown by the fact that nothing in the act states that the amendments to section 627.7015 are inapplicable to existing contracts. However, the absence of a statement in the act that the amendments are inapplicable to existing contracts does not constitute clear evidence of retroactive intent. Devon further points to the text of a different, unrelated section of chapter 2005-111, which amended section 627.711, Florida Statutes. That section states that its provisions are applicable to policies entered into or renewed on or after October 1, 2005. Devon suggests that because the Legislature specifically spoke to prospective application of one section in chapter 2005-111, that the Legislature necessarily intended some or all of the other provisions in the amending act to be retroactive. This argument runs counter to case law that requires clear evidence of legislative intent for retroactive application of a statute. Based on our review of the language, structure, purpose, and legislative history of the enactment, we conclude that there is no clear evidence of legislative intent that the 2005 amendments to section 627.7015 are to be applied retroactively. Thus, the 2005 amendments may not be applied retroactively to the 2004 policy of insurance in this case to bar FIGA’s right to enforce the appraisal provision in that contract. Because we have reached this conclusion under prong one of the two-prong test, we need not address whether retroactive application of the amendments would be constitutional. See Old Port Cove, 986 So.2d at 1284.

CONCLUSION

This Court’s precedents both before and after the Fourth District’s decision require the court to engage in a two-pronged inquiry to determine if the 2005 amendments to section 627.7016 are to be applied retroactively. Thus, the Fourth District misapplied this precedent when it omitted the first inquiry into whether the Legislature clearly expressed an intent that the statute be applied retroactively and moved directly to the second inquiry, whether retroactive application would be constitutional. For this reason, and because there is no clear evidence of legislative intent for ret-roactivity, we quash the decision of the Fourth District to the extent it is inconsistent with this opinion and remand for further proceedings.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

      . Misapplication of our precedent provides a basis for express and direct conflict jurisdiction. See, e.g., Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009); Rosen v. Fla. Ins. Guar. Ass’n, 802 So.2d 291, 292 (Fla.2001).

      . The Florida Insurance Guaranty Act is found in sections 631.50-70, Florida Statutes (2010).

      . Although appraisal provisions in insurance policies have often been treated as arbitration provisions, see, e.g., U.S. Fidelity & Guaranty Co. v. Romay, 744 So.2d 467, 469 (Fla. 3d DCA 1999), we held in Allstate Insurance Co. v. Suarez, 833 So.2d 762, 765 (Fla.2002), that an appraisal provision in an insurance contract is not an agreement to submit to formal arbitration proceedings under the Florida Arbitration Code. We have also held that the question of whether a claim is covered under the policy when the insurer denies coverage is to be determined by a court and not by the appraisal panel. See Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1025-26 (Fla.2002).

      . The Florida Insurance Code is contained in chapters 624-632, 634-636, 641-642, 648 and 651. See § 624.01, Fla. Stat. (2005).

      . Homeowner’s residential policies and commercial residential policies, such as condominium association policies, are often addressed separately in the insurance code. See, e.g., § 627.4025, Fla. Stat. (2010) (stating that residential coverage includes both personal lines residential coverage, such as that provided by homeowner's and similar policies, and commercial lines residential coverage, such as that provided by condominium association and similar policies). Section 631.54(5), Florida Statutes (2010), part of the FIGA act, also defines "homeowner's insurance" to exclude commercial policies such as those covering condominium associations or homeowners' associations.

      . Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 780 (Fla.1979) (recognizing that "virtually” no degree of impairment will be tolerated, but allowing the court to consider the actual effect of the provision on the contract and to balance a party’s interest in not having the contract impaired against the State's source of authority and the evil sought to be remedied).

      . We also made clear in Menendez that "[i]n our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ ” Menendez, 35 So.3d at 876 (quoting Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996)).

      . Section 30 of the act provided that unless otherwise specified, the act shall take effect upon becoming a law. The act was approved by the Governor and filed in the office of the Secretary of State on June 1, 2005. See ch.2005-111, §30, at 1103, Laws of Fla. However, several other sections of the act, in addition to section 15, contained specific effective dates. See, e.g., ch.2005-111, § 2, at 1067 (effective July 1, 2005); § 11, at 1083 (effective January 1, 2006); § 12, at 1087 (effective October 1, 2005); and § 14, at 1090 (effective October 1, 2005).

      . Ch.2005-111, § 22, at 1098, Laws of Fla.


author: DAVIS, Judge.

text:
    Tamara D. TAYLOR, Appellant, v. MORRISON HOMES, INC. n/k/a Taylor Morrison Services, Inc., Appellee.
    No. 2D09-1773.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2010.
    Rehearing Denied Jan. 14, 2011.
    Henry T. Sorensen, II, of Law Offices of Henry T. Sorensen, II, P.A., Tampa, for Appellant.
    Thomas J. Roehn and Laura K. Whit-more of Carlton Fields, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Tamara D. Taylor challenges the trial court’s dismissal with prejudice of her amended complaint filed against Morrison Homes, Inc., in which she alleged violations of the Interstate Land Sales Full Disclosure Act (ILSA). The trial court based its ruling on its conclusion that Morrison Homes was exempt from ILSA’s registration and disclosure requirements. However, because we conclude that, based on the language of the parties’ contract, Morrison Homes does not enjoy such an exemption, we must reverse and remand for further proceedings.

The underlying suit arose after Taylor contracted with Morrison Homes to purchase a home. Seeking rescission of that contract, Taylor alleged in her amended complaint that Morrison Homes had violated certain reporting and registration provisions of ILSA. Morrison Homes moved to dismiss the complaint, however, claiming that it was exempt from ILSA based on the provision in its contract with Taylor obligating it to complete construction within two years. See 15 U.S.C. § 1702(a)(2) (providing that ILSA shall not apply to “the sale ... of land under a contract obligating the seller or lessor to erect ... a building thereon within a period of two years”). The trial court agreed with Morrison Homes and dismissed Taylor’s complaint with prejudice.

Taylor argued below, and argues on appeal, that Morrison Homes may not avail itself of the statute’s two-year-completion exemption because its obligation to complete her home within two years was illusory. Specifically, she maintains that the exemption does not apply because the language in the parties’ agreement does not impose an unrestricted obligation on Morrison Homes to meet the two-year deadline.

The parties’ contract specifically provides as follows:

At any time during the pendency of this Contract and prior to Closing, and for any reason whatsoever or no reason, [Morrison Homes] may elect to terminate this Contract by providing written notice of such termination to [Taylor], together with a full refund of [Taylor’s] Earnest Money Deposit and payment of the sum of [$500.00] as a termination fee and/or liquidated damages, and both parties shall be relieved of any further obligation and liability. This clause shall not be deemed mutual and by signing the Contract, [Taylor] hereby acknowledges, agrees, [and] understands the right of [Morrison Homes] granted by this provision, and agrees that this liquidated damage amount is reasonable and that the ascertainment of any actual damage would be difficult or impossible.

(Emphasis added.)

Taylor maintains that Morrison Homes’ right to terminate the contract at any time and for any reason rendered its two-year-completion obligation illusory. Morrison Homes responds by arguing that the above-quoted contract provision “simply affords one remedy. There is, however, no limitation on remedies.” To support this argument, Morrison Homes points out that the contract also contains the following clause: “If Seller fails to deliver the house within two years from the date of this Agreement, Purchaser shall have all remedies at law and equity.”

In considering whether a builder can claim ILSA exemption based on a contractual obligation to complete the project within two years, the Florida Supreme Court has determined “that in order for the developer to be ‘obligated’ to complete the building within two years, the obligation must be unrestricted and the contract must not limit the purchaser’s right to seek specific performance or damages.” Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1100 (Fla.1990). “[Without the availability of at least both specific performance and damages, the obligation to complete the construction within two years is illusory.” Id. at 1101 (emphasis added).

Although the clause upon which Morrison Homes relies does state that Taylor’s remedies would not be restricted should Morrison Homes fail to complete the contract within two years, the broader liquidated damages clause applies to the entire contract and allows the builder to walk away at any time for any cause. These conflicting provisions afford Morrison Homes the opportunity to avoid its two-year obligation by seeking rescission “for any reason whatsoever or for no reason.” In such instance, Taylor would not be able to seek specific performance. Instead, her remedy would be restricted to a refund of her earnest money deposit plus $500 in liquidated damages. This limitation on Taylor’s right to seek specific performance, pursuant to Samara, renders Morrison Homes’ two-year-completion obligation illusory. As such, Morrison Homes is not entitled to the ILSA exemption, and we must reverse the trial court’s final summary judgment and remand this case for further proceedings.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . See 15 U.S.C. §§ 1701-20.

      . We note without further comment that we find no merit to Taylor’s argument on appeal that certain force majeure language in the parties’ contract nullifies Morrison Homes’ ILSA exemption.


author: MORRIS, Judge.

text:
    Julia MacRAE-BILLEWICZ, Appellant, v. Robert Warren BILLEWICZ, Appellee.
    No. 2D07-5804.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2010.

      Julia MacRae-Billewicz, pro se.
    Cary Alan Cliff of Cary Alan Cliff, P.A., Naples, for Appellee.
   MORRIS, Judge.

Julia MacRae-Billewicz, the wife, appeals a final judgment of dissolution of marriage. The wife raises five issues on appeal. We find three issues to be without merit, and we affirm the final judgment as it relates to those three issues without further comment. However, we reverse the equitable distribution and child support determinations for the reasons discussed below, and we remand for further proceedings on those limited issues.

The parties married in July 1999 and separated in December 2004. They have a minor son, born on March 29, 2000. A dissolution hearing was held on September 18 and 19, 2007, and the final judgment was entered on November 15, 2007. An official transcript of the final hearing is not included in the record on appeal; however, a statement of the proceedings was submitted by the wife, without objection from the husband, and approved by the trial court pursuant to Florida Rule of Appellate Procedure 9.200(b)(4).

On appeal, the wife contends that the trial court erred in applying full faith and credit to a New Hampshire probate order when ruling on a Canadian condominium purchased by the parties during their marriage. The wife argues that the husband bought her the condominium during the marriage and that the husband and wife own the property as tenants by the entirety-

In distributing the marital property, the trial court gave full faith and credit to a New Hampshire probate order finding that the husband had fraudulently acquired the assets of a family trust. The probate order established a constructive trust and directed the husband to return the fraudulently acquired assets to the trust. The trial court in the instant dissolution proceeding found that the Canadian condominium, although acquired, by the ■wife and husband during their marriage, was subject to the New Hampshire probate order and that the New Hampshire probate order operated to divest the wife and the husband of any interest in the Canadian condominium.

We review the trial court’s equitable distribution for abuse of discretion. See Rogers v. Rogers, 12 So.3d 288, 291 (Fla. 2d DCA 2009). “Courts in every jurisdiction are required to give judgments entered in sister states the full faith and credit of the law.” In re Estate of O’Keefe, 888 So.2d 157, 160 (Fla. 2d DCA 2002) (citing U.S. Const. art. IV, § 1; 28 U.S.C. § 1738). “However, those sister court judgments are entitled to full faith and credit only as to those individuals who were parties to the sister court’s proceedings or were given notice and an opportunity to be heard in those proceedings.” Cuevas v. Kelly, 873 So.2d 367, 372 (Fla. 2d DCA 2004).

The wife testified in the proceedings below that she was not a party to the New Hampshire proceeding and that she was not provided notice and an opportunity to be heard. Therefore, the trial court erred in giving full faith and credit to the New Hampshire court’s rulings in regard to the Canadian condominium. See Cuevas, 873 So.2d at 372. In addition, the wife testified that the husband bought the condominium as a birthday gift to her during the marriage and that he purchased it with stocks he received from one of his jobs and not from any of the trust assets. The husband’s testimony in the approved statement of proceedings was consistent with the wife’s testimony in this regard. Accordingly, there was competent, substantial evidence that the condominium was a marital asset. See § 61.075(5)(a)(3), (5)(a)(5), Fla. Stat. (2007). We reverse the trial court’s equitable distribution determination and remand for further proceedings on this issue.

The wife also contends that the trial court erred in its award of child support to be paid by the husband. She claims that $500 a month is unreasonably low for a child diagnosed with autism and that it falls well below the guidelines amount that the husband should pay based on his income-earning potential.

In the final judgment of dissolution, the trial court imputed income to the husband in the amount he was earning in 2005 and ordered the husband to pay the same amount he had been ordered to pay in 2005, which was $500 per month. The wife claims that this is not enough and that under the guidelines, the husband should have been ordered to pay $720 a month. She contends that the $720 amount is based on the gross annual salary of $60,000 that he was earning prior to the dissolution hearing.

During the proceedings below, the husband was earning $60,000 annually in January 2007, and in July 2007, the husband was ordered to pay $750 a month in child support. At the final hearing in September 2007, the husband admitted that he had earned approximately $60,000 annually at two of his most recent jobs and he testified that he resigned from his last job to move up north. According to section 61.30(2)(b), the trial court should impute income to a voluntarily unemployed parent. Under the child support guidelines, $500 a month in child support is justified when the combined monthly net income of the parents is $2300. The trial court did not impute income to the wife because she was unemployed as a stay-at-home mother during the marriage. See § 61.30(2)(b). If the husband was making a gross income of $60,000 per year ($5000 a month) prior to voluntarily leaving his job, the trial court should have imputed a net income to him exceeding $2300 a month.

We note that the trial court did not make the required written findings in regard to the husband’s income. See § 61.30(1).

It is well[ ]settled that a trial court errs by failing to make findings of fact regarding the parties’ incomes when determining child support. This is because findings regarding the parties’ incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. Thus, the failure to include findings regarding the parties’ incomes for purposes of child support calculations renders a final judgment facially erroneous, and the absence of a transcript does not preclude reversal on that basis.

Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010) (citations omitted).

In addition, it is clear from the record that the child was diagnosed with autism and that behavioral therapy has been recommended by his doctors. The mother also testified that the child suffers from obsessive compulsive disorder. The trial court may “adjust the minimum child support award” based on “[ejxtraordinary medical, psychological, educational, or dental expenses” for the child, § 61.30(ll)(a)(l), as well as the “[sjpecial needs, such as costs that may be associated with the disability of the child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed ■ the proposed guidelines,” § 61.30(ll)(a)(6). The trial court made no mention of the child’s disability and special needs in the final judgment of dissolution.

The trial court abused its discretion in failing to properly apply the child-support guidelines based on the evidence presented. See Solomon v. Solomon, 861 So.2d 1218, 1220 (Fla. 2d DCA 2003) (“Because the trial court failed to calculate child support under the guidelines, the award of child support must be reversed.”); Shaw v. Nelson, 4 So.3d 740, 742 (Fla. 1st DCA 2009) (“Ordinarily, a trial court’s determination of child support is reviewed for an abuse of discretion, although such discretion is subject to the statutory child support guidelines.”). We reverse the determination of child support and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ„ Concur.


text:
    SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, d/b/a Seminole Gaming and Seminole Indian Casino-Immokalee, Petitioner, v. Pedro A. ARIZ, as Personal Representative of the Estate of Roselindo Velasquez and on behalf of Victoria Velasquez, as wife of decedent Roselindo Velasquez, Respondent.
    No. 2D10-1335.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2010.

      Donald A. Orlovsky of Kamen & Orlov-sky, P.A., West Palm Beach, for Petitioner.
    John De Leon of Chavez & De Leon, P.A., South Miami, for Respondent.
   MORRIS, Judge.

The Seminole Tribe of Florida (Tribe) seeks (1) a writ of certiorari to review a nonfinal order of the trial court continuing the hearing on the Tribe’s motion to dismiss a wrongful death action for lack of subject matter jurisdiction and allowing Victoria Velasquez, as the “presumptive personal representative” of the estate of Roselindo Velasquez, to conduct discovery on jurisdictional issues and (2) a writ of prohibition barring further proceedings by Velasquez and the trial court. We deny the petition for writ of certiorari but grant the petition for writ of prohibition barring further proceedings, finding that the trial court lacks subject matter jurisdiction.

Background

In April 2006, an employee of the Seminole Gaming and Seminole Indian Casino-Immokalee struck and killed Roselindo Velasquez with his car as the decedent attempted to walk across CR 846 in Immok-alee, Florida. On April 28, 2008, Victoria Velasquez, as the “presumptive personal representative” and wife of the decedent, filed a civil action seeking damages for the wrongful death of her husband, naming the Tribe as a defendant. Velasquez claims the Tribe is vicariously liable for her husband’s death. The complaint was subsequently amended in February 2009, and in March 2009 the Tribe filed a motion to dismiss for lack of subject matter jurisdiction based upon the doctrine of tribal sovereign immunity.

The Tribe argues that it has tribal immunity under the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479; that it has not waived its immunity in this matter; and that Congress has not abrogated the Tribe’s immunity. In support of the motion, the Tribe filed the affidavits of the tribal secretary and of a longstanding member of the tribal council, along with copies of the Tribe’s charter and Tribal Ordinance C-01-95 (Tribal Ordinance). In response, Velasquez claims that when the Tribe entered into the Seminole Tribe of Florida and State of Florida Gaming Corn-pact (Compact) on November 14, 2007, it waived its immunity.

On February 24, 2010, almost a full year after the motion to dismiss was filed, the trial court heard argument on the motion and entered an order permitting Velasquez to conduct discovery limited to the issue of subject matter jurisdiction. The court delayed making a determination on the Tribe’s motion to dismiss.

Analysis

Florida law is clear that the Indian tribes are independent sovereign governments not subject to the civil jurisdiction of the courts of this state. See Houghtaling v. Seminole Tribe of Fla., 611 So.2d 1235 (Fla.1993) (discussing in detail federal and state legislative history and case law of sovereign immunity of Indian tribes). It is also well-established law in Florida that the Tribe is immune from suit brought by any third party in state or federal court without the clear and unequivocal consent of the Tribe or the clear and unequivocal consent of Congress. See Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 356 (Fla. 2d DCA 2005). Pursuant to the terms of the Tribal Ordinance, clear and unequivocal consent of the Tribe may only be established through a resolution duly enacted by the Tribal Council of the Seminole Tribe of Florida sitting in legal session. Any resolution purporting to waive sovereign immunity must include the purpose for the waiver and the extent to which the waiver applies. The consent of Congress must be express and may not arise from implication. Id. at 358 (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)).

Velasquez relies upon one section of the Compact, part VI, section D, paragraph five, to establish a limited waiver of immunity she argues is applicable. Part VI of the Compact is titled “Patron Dispute, Tort Claims; Prize Claims; Limited Consent to Suit,” and section D is titled “Tort remedies for Patrons.” Section D, including paragraph five, applies to patrons who claim “to have been injured in the area of the Facility where Covered Games are played.” Patrons are defined as those people who are on the premises of a facility or who have entered the Tribe’s lands for the purpose of playing authorized covered games. Compact, part III, § 0. A facility is a building of the Tribe in which the covered games authorized by the Compact are conducted. Compact, part III, §§ I, E. It is apparent that the limited waiver of sovereign immunity in part VI, section D, is not applicable to the facts of Velasquez’s claim because the decedent was not a patron injured in a Tribe facility. Therefore, the Compact does not reflect the requisite clear and unequivocal consent of the Tribe to be subject to liability under the facts of this case.

Velasquez has failed to show an express and unequivocal waiver of sovereign immunity that is applicable to her case. See Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152, 1153 (Fla. 1st DCA 2004); see also Cupo v. Seminole Tribe of Fla., 860 So.2d 1078, 1079 (Fla. 1st DCA 2003) (concluding that the judge of compensation claims lacked subject matter jurisdiction because the claimant failed to show a clear, express, and unmistakable waiver of sovereign immunity). Further, the unchallenged affidavits and accompanying Tribe charter and Tribal Ordinance make it clear that the Tribe has not waived its sovereign immunity. See McCor, 903 So.2d at 359.

The Tribe has established that it is entitled to tribal sovereign immunity and that the trial court is without subject matter jurisdiction in this matter. Therefore, we grant the Tribe’s petition for writ of prohibition barring further proceedings but deny the petition for writ of certiorari.

ALTENBERND and WALLACE, JJ., Concur.

      . On June 23, 2010, this court ordered Victoria Velasquez to demonstrate her standing to bring the action below as the personal representative of the estate of Roselindo Velasquez. In response, Velasquez supplied this court with a certified copy of the letters of administration appointing Pedro A. Ariz as the personal representative. On July 22, 2010, on its own motion, this court substituted Pedro A. Ariz for Victoria Velasquez as the proper respondent in this action.

      . This court cannot effectuate a substitution of parties in the circuit proceeding below but notes that Victoria Velasquez is not a proper party to the action. However, regardless of who the plaintiff below is, under the circumstances of this case, the Tribe remains immune, and therefore, the circuit court lacks jurisdiction.

      . Procedurally, this case is quite confusing. From the filings in the trial court, it appears that Alex Pickles was a security guard at the Seminole Casino Immokalee and was driving his own car home on his break to check on his wife at the time of this accident. Even if the Tribe lacked immunity, it is not obvious how it could be liable for this accident. Mr. Pickles is named as a defendant in the trial court but has not participated in this original proceeding. It is not clear from our record whether he has ever been served in the trial court proceeding. If he is a party in the trial court, nothing in our ruling today prevents an action against him as the owner and driver of the allegedly negligent vehicle.

      . Although not a proper party to this action, this court considered Velasquez’s response to the Tribe's petition as Velasquez was the original respondent here and is the plaintiff below. However, as noted above, under the facts of this case, the Tribe is immune from suit and the circuit court lacks jurisdiction, regardless of whether Velasquez or the actual personal representative of the estate is the plaintiff below.