author: LEWIS, J. POLSTON, J.,

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Petitioner, v. Coy A. KOONTZ, etc., Respondent.
    No. SC09-713.
    Supreme Court of Florida.
    Nov. 3, 2011.
    Rehearing Denied Jan. 4, 2012.

      William H. Congdon and Kathryn L. Mennella, Palatka, FL, for Petitioner.
    Christopher V. Carlyle and Shannon McLin Carlyle and The Carlyle Appellate Law Firm, The Villages, FL, and Michael D. Jones of Michael D. Jones and Associates, P.A., Winter Springs, FL, for Respondent.
    Harry Morrison, Jr. and Kraig A. Conn, Tallahassee, FL, Virginia Saunders Delegal, on behalf of Florida Association of Counties, Inc. and Florida League of Cities, Inc.; Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Courtney Brewer, Deputy Solicitor General, Tallahassee, FL, on behalf of the Attorney General, Thomas M. Beason, General Counsel and Meredith C. Fields, Assistant General Counsel, Tallahassee, FL, on behalf of Florida Department of Environmental Protection, Kevin X. Crowley of Pennington Moore, Wilkinson, Bell and Dunbar, P.A., Tallahassee, FL, on behalf of the Northwest Florida Water Management District, William S. Bilenky General Counsel, and Joseph J. Ward, Assistant General Counsel, Brooksville, FL, on behalf of the South Florida Water Management District, and the Southwest Florida Water Management District; E. Thom Rumberger and Noah D. Valenstein of Rumberger, Kirk and Caldwell, Tallahassee, FL, on behalf of National Audubon Society; David L. Powell, Gary K. Hunter, Jr., and Mohammad O. Jazil of Hopping Green and Sams, Tallahassee, FL, on behalf of Association of Florida Community Developers, Inc.; Amy Brigham Boulris and John W. Little, III of Brigham Moore, LLP, Coral Gables, on behalf of Florida Home Builders and National Association of Homebuilders, Keith C. Hetrick, General Counsel, Tallahassee, FL, on behalf of Florida Homebuilders Association; and Steven Geoffrey Gieseler and Nicholas M. Gieseler, Stuart, FL, on behalf of Pacific Legal Foundation, As Amici Curiae.
   LEWIS, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in St. Johns River Water Management District v. Koontz, 5 So.3d 8 (Fla. 5th DCA 2009) (Koontz IV). In its decision, the Fifth District construed provisions of the state and federal constitutions. The district court also certified a question to be of great public importance, which we have rephrased as follows:

DO THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTIONS TAKING UNDER THE HOLDINGS OF NOLLAN V. CALIFORNIA COASTAL COMMISSION, 483 U.S. 825 [107 S.Ct. 3141, 97 L.Ed.2d 677] (1987), AND DOLAN V. CITY OF TIGARD, 512 U.S. 374 [114 S.Ct. 2309, 129 L.Ed.2d 304] (1994), WHERE THERE IS NO COMPELLED DEDICATION OF ANY INTEREST IN REAL PROPERTY TO PUBLIC USE AND THE ALLEGED EXACTION IS A NON LAND-USE MONETARY CONDITION FOR PERMIT APPROVAL WHICH NEVER OCCURS AND NO PERMIT IS EVER ISSUED? []

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

We rephrase the certified question to reflect that the issue presented by this case is controlled by the existing interpretation of the United States Constitution by the United States Supreme Court. This Court has previously interpreted the takings clause of the Fifth Amendment and the takings clause of the Florida Constitution coextensively. See, e.g., Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.1994) (“We acknowledge that in striking down the offending portion of the statute in Joint Ventures, we referred to the takings clauses of our state and federal constitutions.”); Joint Ventures, Inc. v. Dep’t of Transp., 563 So.2d 622, 623 (Fla.1990) (“We answer the question in the affirmative, finding those subsections invalid as a violation of the fifth amendment to the United States Constitution and article X, section 6(a) of the Florida Constitution.”). We also rephrase the question to address the two actual factors to which the doctrine of exactions was expanded by the Fifth District-application of the doctrine to an alleged exaction that does not involve the dedication of an interest in or over real property; and application of the doctrine where an exaction does not occur and no permit is issued by the regulatory entity.

For the reasons expressed below, we answer the rephrased question in the negative and quash the decision under review.

BACKGROUND

This case has an extended procedural history. Prior to the issuance of the decision that is currently before the Court, issues related to the regulation of this property were before the Fifth District Court of Appeal on three occasions. During the first appeal, the Fifth District reversed a determination by the trial court that the claim of Coy A. Koontz, Sr. (Mr. Koontz) was not ripe for adjudication and remanded the matter for a trial on whether the actions of the St. Johns River Water Management District (St. Johns) effected a taking of Mr. Koontz’s property. See Koontz v. St. Johns River Water Mgmt. Dist., 720 So.2d 560, 562 (Fla. 5th DCA 1998) (Koontz I), review denied, 729 So.2d 394 (Fla.1999). After the trial court determined that a taking had occurred, St. Johns twice attempted to appeal that determination, but the Fifth District dismissed both appeals, concluding that the orders issued by the trial court did not constitute final orders or appealable non-final orders. See St. Johns River Water Mgmt. Dist. v. Koontz, 861 So.2d 1267, 1268 (Fla. 5th DCA 2003) (Koontz II); St. Johns River Water Mgmt. Dist. v. Koontz, 908 So.2d 518, 518 (Fla. 5th DCA 2005) (Koontz III). After the trial court entered a judgment assessing damages in favor of Coy A. Koontz, Jr., as personal representative of the Estate of Mr. Koontz, St. Johns filed an appeal to review that judgment. See Koontz IV, 5 So.3d at 8.

The decision resulting from that appeal in Koontz TV provides the following background:

This case involves á landowner, Mr. Koontz, who, in 1994, requested permits from [St. Johns] so that he could develop a greater portion of his commercial property than was authorized by existing regulation.... Based on the permit denial, Mr. Koontz brought an inverse condemnation claim asserting an improper “exaction” by [St. Johns].
In the most general sense, an “exaction” is a condition sought by a governmental entity in exchange for its authorization to allow some use of land that the government has otherwise restricted. Even though the government may have the authority to deny a proposed use outright, under the exactions theory of takings jurisprudence, it may not attach arbitrary conditions to issuance of a permit.
In relating the circumstances giving rise to this case, the trial court explained:
The subject property is located south of State Road 50, immediately east of the eastern extension of the East-West Expressway in Orange County. The original plaintiff, Coy Koontz, has owned the subject property since 1972. In 1987, a portion of the original acreage[] adjacent to Highway 50 was condemned, leaving Mr. Koontz with 14.2 acres. There is a 100-foot wide transmission line easement of Florida Power Corporation running parallel to and about 300 feet south of Highway 50, that is kept cleared and mowed by Florida Power....
All but approximately 1.4 acres of the tract lies within a Riparian Habitat Protection Zone (RHPZ) of the Econlockhatchee River Hydrological Basin and is subject to jurisdiction of the St. Johns River Water Management District.
In 1994, Koontz sought approval from [St. Johns] for a 3.7 acre development area adjacent to Highway 50, of which 3.4 acres were wetlands and .3 acres were uplands.

In his concurring opinion in Koontz II, Judge Pleus explained the positions [advanced] by the parties during the permit approval process:

Koontz proposed to develop 3.7 acres closest to Highway 50, back to and including the power line easement. In order to develop his property, he sought a management and storage of surface waters permit to dredge three and one quarter acres of wetlands. A staffer from St. Johns agreed to recommend approval if Koontz would deed the remaining portion of his property into a conservation area and perform offsite mitigation by either replacing culverts four and one-half miles southeast of his property or plug certain drainage canals on other property some seven miles away. Alternatively, St. Johns demanded that Koontz reduce his development to one acre and turn the remaining 14 acres into a deed-restricted conservation area. Koontz agreed to deed his excess property into conservation status but refused St. Johns’ demands for offsite mitigation or reduction of his development from three and seven-tenths acres to one acre. Consequently, St. Johns denied his permit applications.
Id. at 1269 (Pleus, J., concurring specially). In its orders denying the permits, [St. Johns] said that Mr. Koontz’s proposed development would adversely impact Riparian Habitat Protection Zone [“RHPZ”] fish and wildlife, and that the purpose of the mitigation was to offset that impact.
• After hearing conflicting evidence, the trial court concluded that [St. Johns] had effected a taking of Mr. Koontz’s property.... In reaching this conclusion, the trial court applied the constitutional standards enunciated by the Supreme Court in Nollan and Dolan. In Nollan, with respect to discretionary decisions to issue permits, the Supreme Court held that the government could impose a condition on the issuance of the permit without effecting a taking requiring just compensation if the condition “serves the same governmental purpose as the developmental ban.” 483 U.S. at 837, 107 S.Ct. 3141. This test is referred to as the “essential nexus” test. In Dolan, the Court added the requirement that, for such a condition to be constitutional, there must also be a “rough proportionality” between the condition and the impact of the proposed development. 512 U.S. at 390-91, 114 S.Ct. 2309.

Koontz IV, 5 So.3d at 9-10 (footnotes omitted) (citations omitted).

After the circuit court determined that St. Johns had effected a taking of Mr. Koontz’s property, statutory law required St. Johns to take one of three possible actions: (a) agree to issue the permit; (b) agree to pay damages; or (c) agree to modify its decision to avoid an unreasonable exercise of police power. See § 373.617(3), Fla. Stat. (2002). Here, St. Johns chose to issue the permits to Mr. Koontz after it received additional evidence which demonstrated that the amount of wetlands on Mr. Koontz’s property was significantly less than originally believed. The circuit court subsequently awarded Mr. Koontz $876,154 for a temporary taking of his property by St. Johns.

On appeal, St. Johns first contended that the trial court lacked subject matter jurisdiction to consider Mr. Koontz’s exac-tions claim because the statute under which the claim was asserted, section 373.617, Florida Statutes (1993), limited circuit court review to cases in which a constitutional taking has actually occurred. See Koontz IV, 5 So.3d at 10. St. Johns asserted that although an exactions claim is a form of taking and is cognizable under section 373.617, no exaction occurred here because nothing had been taken from Mr. Koontz. See id. at 10-11. The original limitations applicable to the property were never challenged. The Fifth District Court of Appeal framed this challenge as “whether an exaction claim is cognizable when, as here, the land owner refuses to agree to an improper request from the government resulting in the denial of the permit.” Id. at 11. The district court concluded that the United States Supreme Court had implicitly determined in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), that an exaction occurs under such circumstances. See 5 So.3d at 11.

St. Johns also contended that an action for inverse condemnation lacked merit because the condition proposed by St. Johns did not involve a physical dedication of land but instead would have caused Mr. Koontz to expend money for improvement of land belonging to St. Johns if accepted. See id. at 12. The Fifth District Court of Appeal also rejected this assertion and concluded that the United States Supreme Court had implicitly decided this issue adverse to St. Johns in Ehrlich v. City of Culver City, 512 U.S. 1231, 114 S.Ct. 2731, 129 L.Ed.2d 854 (1994). See 5 So.3d at 12. In Ehrlich, the United States Supreme Court vacated a lower court decision that approved the conditioning of a permit on the payment of money to build tennis courts and purchase artwork and remanded the case for reconsideration in light of Dolan. See id. (citing Ehrlich, 512 U.S. 1231, 114 S.Ct. 2731). The Fifth District concluded that in the absence of a more definite pronouncement from the United States Supreme Court on this issue, the distinction advanced by St. Johns was not legally significant. See Koontz IV, 5 So.3d at 12. The Fifth District affirmed the trial court judgment awarding compensation to Mr. Koontz. See id.

In dissent, Judge Griffin asked, “[i]n what parallel legal universe or deep chamber of Wonderland’s rabbit hole could there be a right to just compensation for the taking of property under the Fifth Amendment when no property of any kind was ever taken by the government and none ever given up by the owner?” Id. at 20 (Griffin, J., dissenting). Judge Griffin asserted that whether a taking has occurred depends on whether a landowner gives up any protected interest in his or her land:

If [a protected interest is given up], whether temporarily or permanently, the landowner is entitled to compensation as set forth in the “taking” cases. If, however, the unconstitutional condition does not involve the taking of an interest in land, the remedy of inverse condemnation is not available. In this case, the objected-to condition that was found to be an exaction was not an interest in land; it was the requirement to perform certain off-site mitigation in the form of clean-up of culverts and ditches to enhance wetlands several miles away.

Id. at 18 (Griffin, J., dissenting). Judge Griffin also reasoned that whether a condition that has been rejected can constitute a taking was not resolved in Dolan, and that a taking does not occur under such circumstances:

In this case, if Mr. Koontz had given in to [St. Johns’] condition, gotten his development permit and done the off-site mitigation, he would be entitled to recover the value of the off-site mitigation. If he elected to refuse the offer, he had a judicial remedy to invalidate the condition. ... The parcel of land for which he sought the development permit was not, however, in any wise “taken” by [St. Johns]. The only way a “taking” can even be conceptualized in such a circumstance is by adopting the view that by proposing an “unconstitutional condition” that was rejected, [St. Johns] forfeited its right (and duty) to protect the public interest to refuse the permit at all.

Id. at 20-21 (Griffin, J., dissenting).

St. Johns subsequently filed a motion for certification, which the Fifth District Court of Appeal granted. See id. at 22. The district court then certified a question to this Court as one of great public importance.

ANALYSIS

Standard of Review and Constitutional Provisions

As a preliminary matter, the interpretation of a constitutional provision is a question of law that is reviewed de novo. See Fla. Dep’t of Rev. v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005).

The Fifth Amendment to the United States Constitution provides that private property shall not be taken for public use without just compensation. See amend. V, U.S. Const. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. See Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). The purpose behind the takings doctrine is to prevent government from forcing an individual to bear burdens that should be carried by the public as a whole. See Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). The takings provision of the Florida Constitution provides: “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Art. X, § 6(a), Fla. Const. As previously discussed, this Court has interpreted the takings clauses of the United States and Florida Constitutions coexten-sively. See A.G.W.S. Corp., 640 So.2d at 58; Joint Ventures, 563 So.2d at 623.

Takings Under Supreme Court Case Law

The United States Supreme Court has stated that the takings clause of the Fifth Amendment does not prohibit the taking of private property by the government, but instead places conditions on the exercise of that power. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The clause is not intended to limit government interference with property rights, but rather to secure compensation where otherwise proper interference amounts to a taking. See id. at 315, 107 S.Ct. 2378.

Outside the special context of land-use exactions (discussed below), the United States Supreme Court has recognized two types of regulatory actions that generally constitute per se takings under the Fifth Amendment. First, if government action causes a permanent physical invasion of private property, the government must provide just compensation to the owner of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (taking occurred where state law required landlords to allow cable companies to install cable equipment in their apartment buildings). Second, a government regulation that completely deprives an owner of all economically beneficial use of his or her property effects a Fifth Amendment taking. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In Lucas, the United States Supreme Court held that the government must pay just compensation for such “total regulatory takings,” id. at 1026, 112 S.Ct. 2886, except to the extent that the owner’s intended use of his or her property is restricted by nuisance and property law. See id. at 1026-32, 112 S.Ct. 2886.

Aside from regulations that allow physical invasions of private property or deprive a property owner of all beneficial property use, regulatory takings challenges are governed by the standard articulated in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The United States Supreme Court in Penn Central acknowledged that it had previously been unable to establish any “set formula” for evaluating regulatory takings claims, but identified a number of factors that have particular significance. Id. at 124, 98 S.Ct. 2646. The United States Supreme Court stated that the primary factor to consider is “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Id. The Supreme Court also concluded that the character of the governmental action, such as whether the action constitutes a physical invasion or merely impacts property interests, can be relevant to a determination of whether a taking has occurred. See id. The Penn Central standard has served as the principal guide for assessing allegations that a regulatory taking has occurred where the government action does not fall within the physical-invasion or Lucas takings categories.

With regard to the doctrine of exactions, in the late 1980s and early-to-mid 1990s, the United States Supreme Court issued two decisions, Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), a California case that involved a beach pass-through easement, and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), an Oregon case that involved storm-water and bike-path land dedications. These cases arose from landowner requests for building permits to expand the structures located on their real property. In response, the pertinent governmental entities approved the permits, but conditioned that approval on the receipt of exactions.

In Nollan, the California Coastal Commission approved the Nollans’ request for a building permit subject to the dedication of an easement that would allow the public to pass across the beach that was owned by the Nollans behind their home. See 483 U.S. at 828, 107 S.Ct. 3141. The Nol-lans proceeded to build their expanded home but legally contested the exaction imposed as an uncompensated taking. See id. at 828-30, 107 S.Ct. 3141. On certiora-ri review, the United States Supreme Court articulated an “essential nexus” test, which required a government entity to establish that the condition imposed for approval of a building permit (i.e., the exaction) served the same public purpose that would have supported a total ban of the proposed development. See 483 U.S. at 836-37, 107 S.Ct. 3141. Thus, if (as the Commission asserted) the public’s right to view the shore from the street was the supporting reason for denying the Nol- Ians’ permit, the proposed condition/exaction must directly relate to and further this supporting reason. See id. at 835-38, 107 S.Ct. 3141. For example, a height restriction on the proposed development to preserve the view corridor might satisfy the requirement. See id. at 836, 107 S.Ct. 3141. However, the easement at issue in Nollan, which would allow members of the public to pass across beach owned by the Nollans, failed this test because the right of the public to view the shore from a nearby street was not served by the ability of individuals to traverse up and down the Nollans’ beach property. See id. at 838-39, 107 S.Ct. 3141. Thus, the United States Supreme Court concluded that if the State of California desired an easement across the Nollans’ property, the State must pay compensation for that easement. See id. at 841^2, 107 S.Ct. 3141.

On certiorari review in Dolan, the Court expanded upon Nollan to not only require an “essential nexus” between the permit-approval condition upon the land and the alleged public problem caused by the proposed development, but also to require “rough proportionality” between the condition placed on the land and the extent of the impact of the proposed development. See 512 U.S. at 391, 114 S.Ct. 2309. For example, where (as in Dolan) one asserted impact of the development was increased traffic congestion, and the permit-approval condition on the property was the dedication of land for a bike path, the government must demonstrate that the additional number of vehicle and bicycle trips generated by the development are reasonably related to the government’s requirement for dedication of a bicycle path easement over the property. See id. at 387-88, 395-96, 114 S.Ct. 2309. Similar to Nollan, the government entity in Dolan approved the requested permit subject to contested conditions on the land (i.e., storm-water and bike-path land dedications), and the landowner filed an action claiming that these conditions over the land constituted uncompensated takings. See Dolan, 512 U.S. at 379-83, 114 S.Ct. 2309.

In the sixteen years since the Supreme Court issued Dolan, the High Court has only commented twice on the scope of the Nollan/Dolan test. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999), the developer submitted nineteen different site plans to the City of Monterey for development of an oceanfront parcel of land. Each time, the city rejected the plan and imposed even more rigorous conditions upon the developer. See id. at 697-98, 119 S.Ct. 1624. When the developer concluded that the city would not permit development under any circumstances, it filed suit in federal court contending that the final denial of development constituted a regulatory taking of the property. See id. at 698, 119 S.Ct. 1624. The United States Supreme Court concluded that the Nollan/Dolan exactions standard was inapplicable to the actions of the city:

[W]e have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use. See Dolan, [512 U.S.] at 385 [114 S.Ct. 2309]; Nollan v. California Coastal Comm’n, 483 U.S. 825, 841 [107 S.Ct. 3141, 97 L.Ed.2d 677] (1987). The rule applied in Dolan considers whether dedications demanded as conditions of development are proportional to the development’s anticipated impacts. It was not designed to address, and is not readily applicable to, the much different questions arising where, as here, the landowner’s challenge is based not on excessive exactions but on denial of development. We believe, accordingly, that the rough-proportionality test of Dolan is inapposite to a case such as this one.

Id. at 702-03, 119 S.Ct. 1624 (emphasis supplied). More recently, in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), the United States Supreme Court rejected a takings test that it had previously adopted in Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). See Lingle, 544 U.S. at 548, 125 S.Ct. 2074 (“We hold that the ‘substantially advances’ formula is not a valid takings test....”). The Agins standard had been mentioned in both Nollan and Dolan, which caused the Supreme Court to expressly note that its rejection of that standard had no impact on the holdings of these two more recent cases. See id. at 546-48, 125 S.Ct. 2074. In the context of this discussion, the Supreme Court reasoned that Nollan and Dolan involved Fifth Amendment takings challenges to adjudicative land-use exac-tions — more specifically, government demands that landowners dedicate easements over their land to allow the public access across their property as a condition of obtaining development permits. See id. at 546, 125 S.Ct. 2074. The Court further stated that it refined the Nollan “essential nexus” test in Dolan by holding that

an adjudicative exaction requiring dedication of private property must also be “ ‘roughfiy] proportional!]’ ... both in nature and extent to the impact of the proposed development.” 512 U.S., at 391 [114 S.Ct. 2309]; see also Del Monte Dunes, supra, at 702 [119 S.Ct. 1624] (emphasizing that we have not extended this standard “beyond the special context of [such] exactions”).

Id. at 547, 125 S.Ct. 2074 (alterations in original) (emphasis supplied).

The Scope of the Nollan/Dolan Test

State and federal courts have been inconsistent with regard to interpretations of the scope of the Nollan/Dolan test, even after the decisions in Del Monte Dunes and Lingle. The divide is most clearly evident on the issue of whether the test applies to conditions that do not involve the dedication of land or conditions imposed upon the land.

One line of cases holds that the Nol-lan/Dolan standard applies solely to exac-tions cases involving land-use dedications. See, e.g., McClung v. City of Sumner, 548 F.3d 1219, 1228 (9th Cir.2008) (distinguishing monetary conditions from conditions on the land); Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1578 (10th Cir.1995); Sea Cabins on the Ocean IV Homeowners Ass’n v. City of N. Myrtle Beach, 345 S.C. 418, 548 S.E.2d 595, 603 n. 5 (2001) (holding that Del Monte Dunes clarified that Nollan and Dolan only apply to physical conditions imposed upon land).

The other line of cases holds that the Nollan/Dolan test extends beyond the context of the imposition of real property conditions on real property. For example, the California Supreme Court has held that non-real property conditions can constitute a taking where the condition is imposed on a discretionary, individualized basis. See Ehrlich v. City of Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429, 444 (1996). However, in Town of Flower Mound v. Stafford Estates Ltd. Partnership, 135 S.W.3d 620, 640-41 (Tex.2004), the Texas Supreme Court expanded application of the test further, holding that Nollan and Dolan can apply to certain non-real property conditions that arise from generally applicable regulations.

Despite the varied interpretations of the scope of Nollan/Dolan, we must follow the decisions of the United States Supreme Court with regard to Fifth Amendment takings jurisprudence. See Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 220-21, 51 S.Ct. 453, 75 L.Ed. 983 (1931) (state courts are bound by United States Supreme Court’s interpretations of federal law); Carnival Corp. v. Carlisle, 953 So.2d 461, 465 (Fla.2007) (state courts are generally not bound by the decisions of the lower federal courts on questions of federal law). Moreover, the Supreme Court itself has specifically stated that when it denies certiorari review, that denial “imports no expression of opinion upon the merits of the case.” Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (quoting United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 67 L.Ed. 361 (1923)). Thus, we decline to interpret a decision of the United States Supreme Court not to review a case that addresses an exactions issue as an approval of the merits or holding of the underlying decision in that case.

Instead, we are guided only by decisions in which the Supreme Court has expressly applied, or commented upon the scope of, exactions takings. Nollan and Dolan both involved exactions that required the property owner to dedicate real property in exchange for approval of a permit. See Dolan, 512 U.S. at 380, 114 S.Ct. 2309; Nollan, 483 U.S. at 827, 107 S.Ct. 3141. Additionally, in both cases the regulatory entities issued the permits sought with the objected-to exactions imposed. See Dolan, 512 U.S. at 379, 114 S.Ct. 2309; Nollan, 483 U.S. at 828, 107 S.Ct. 3141. Moreover, in Del Monte Dunes and Lingle, the United States Supreme Court specifically limited the scope of Nollan and Dolan to those exactions that involved the dedication of real property for a public use. See Lingle, 544 U.S. at 546-47, 125 S.Ct. 2074; Del Monte Dunes, 526 U.S. at 702-03, 119 S.Ct. 1624. Absent a more limiting or expanding statement from the United States Supreme Court with regard to the scope of Nollan and Dolan, we decline to expand this doctrine beyond the express parameters for which it has been applied by the High Court. Accordingly, we hold that under the takings clauses of the United States and Florida Constitutions, the Nollan/Do-lan rule with regard to “essential nexus” and “rough proportionality” is applicable only where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.

It is both necessary and logical to limit land-use exactions doctrine to these narrow circumstances. Governmental entities must have the authority and flexibility to independently evaluate permit applications and negotiate a permit award that will benefit a landowner without causing undue harm to the community or the environment. If a property owner is authorized to file an inverse condemnation claim on the basis of the exactions theory any time regulatory negotiations are not successful and a permit is denied, two undesirable outcomes inevitably ensue. First, the regulation of land use, deemed by the United States Supreme Court to be “peculiarly within the province of state and local legislative authorities,” would become prohibitively expensive. Warth v. Seldin, 422 U.S. 490, 508 n. 18, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (“Land-use regulations are ubiquitous and most of them impact property values in some tangential way — often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford.”).

Second, and as a result of the first consequence, agencies will opt to simply deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation. Property owners will have no opportunity to amend their applications or discuss mitigation options because the regulatory entity will be unwilling to subject itself to potential liability. Land development in certain areas of Florida would come to a standstill. We decline to approve a rule of law that would place Florida land-use regulation in such an unduly restrictive position.

Based on the above analysis, we conclude that the Fifth District in Koontz IV erroneously applied the Nollan/Dolan ex-actions test to the offsite mitigation proposed by St. Johns. Since St. Johns did not condition approval of the permits on Mr. Koontz dedicating any portion of his interest in real property in any way to public use, this analysis does not apply. Further, even if we were to conclude that the Nollan/Dolan test applied to non-real property exactions — which we do not — Mr. Koontz would nonetheless fail in his exac-tions challenge because St. Johns did not issue permits, Mr. Koontz never expended any funds towards the performance of off-site mitigation, and nothing was ever taken from Mr. Koontz. As noted by the United States Supreme Court, Nollan and Dolan were not designed to address the situation where a landowner’s challenge is based not on excessive exactions but on a denial of development. See Del Monte Dunes, 526 U.S. at 703, 119 S.Ct. 1624. Here, all that occurred was that St. Johns did not issue permits for Mr. Koontz to develop his property based on existing regulations and, therefore, an exactions analysis does not apply. See id. (“[T]he rough-proportionality test of Dolan is inapposite to a case such as this one.”).

CONCLUSION

Based on our analysis in this case, we answer the rephrased certified question in the negative, quash the decision of the Fifth District in Koontz IV, and remand for proceedings consistent with this opinion. We emphasize that our decision today is limited solely to answering the rephrased certified question. We decline to address the other issues raised by the parties.

It is so ordered.

PARIENTE, LABARGA, and PERRY, JJ., concur.

QUINCE, J., concurs in result only.

POLSTON, J., concurs in result only with an opinion, in which CANADY, C.J., concurs.

POLSTON, J.,

concurring in result only.

I agree with St. Johns River Water Management District’s argument that underlying the landowner’s claim for regulatory taking is an attack on the propriety of agency action. Therefore, under these circumstances, the landowner is required to exhaust administrative remedies under chapter 120, Florida Statutes, before bringing this regulatory taking action pursuant to section 373.617, Florida Statutes. See § 373.617(2), Fla. Stat. (2002) (“Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120.”); Key Haven Associated Enters., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 427 So.2d 153, 159 (Fla.1982).

Accordingly, I would quash the Fifth District’s opinion but not reach the certified questions as phrased by the Fifth District or the majority.

CANADY, C.J., concurs.

      . The original certified question provided:
      WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS OF NOLLAN [n.1] AND DOLAN [n.2] WHERE, INSTEAD OF A COMPELLED DEDICATION OF REAL PROPERTY TO PUBLIC USE, THE EXACTION IS A CONDITION FOR PERMIT APPROVAL THAT THE CIRCUIT COURT FINDS UNREASONABLE?

        [n.1] A Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).
      [n.2.] Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).

        Koontz IV, 5 So.3d at 22.

      . Mr. Koontz owned a total of 14.9 acres in Orange County. See Koontz I, 720 So.2d at 561.

      . Our holding today is consistent with the 2011 decisions of two federal appellate courts, both of which held that Nollan and Dolan are inapplicable to cases that do not involve the dedication of real property for a public use. See Iowa Assurance Corp. v. City of Indianola, 650 F.3d 1094, 1096-97 (8th Cir.2011) (ordinance which required an enclosed fence to surround areas where two or more race cars are present not subject to a Nollan/Dolan exactions analysis); West Linn Corporate Park, LLC v. City of West Linn, 428 Fed.Appx. 700, 702 (9th Cir.2011) (refusing to extend Nollan/Dolan where city required developer to construct several off-site public improvements but did not require dedication of developer's interest in real property), petition for cert. filed, 80 U.S.L.W. 3135 (U.S. Sept. 6, 2011) (No. 11-299).


source: Caselaw Access Project

author: PER CURIAM. CANADY, C.J.,

license: Public Domain

text:
    Nicholas AGATHEAS, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-602.
    Supreme Court of Florida.
    Dec. 15, 2011.

      Richard L. Rosenbaum of Arnstein and Lehr, LLP, Fort Lauderdale, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Joseph A. Tringali, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

Nicholas Agatheas seeks review of Agatheas v. State, 28 So.3d 204 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal denied Agatheas’s claims of ineffective assistance of counsel and fundamental error with respect to the admission of a 45-caliber revolver. The Fourth District held that the trial court properly admitted the 45-caliber revolver, which was recovered from Agatheas when he was arrested five years after the murder — even though the revolver was indisputably not connected to the crime. The Fourth District concluded that because the revolver was properly admitted, both Agatheas’s ineffective assistance of counsel claim and his fundamental error claim failed. In holding that a gun unrelated to the crime was admissible, the Fourth District’s decision is in express and direct conflict with the Fifth District Court of Appeal’s decision in Moore v. State, 1 So.3d 1177 (Fla. 5th DCA 2009). In Moore, the Fifth District held that the trial court erred in denying Moore’s ineffective assistance of counsel claim where her trial counsel failed to object to the admission of a firearm recovered from Moore’s house as well as photographs of several other firearms, none of which was connected to the charged crime. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We conclude that the Fourth District erred in holding that a gun unrelated to the crime was admissible. Accordingly, we quash the Fourth District’s decision below and approve the Fifth District’s decision in Moore.

I. BACKGROUND

Agatheas was arrested in May 2005 for the July 2000 murder of Thomas Villano. Although there was some evidence connecting Agatheas to the murder shortly after it occurred, there was insufficient evidence to charge him until Agatheas’s former girlfriend, Jessica Krauth, came forward five years after the murder. Krauth testified that she had not originally told police about Agatheas’s admission that he had murdered the victim, because she was afraid of what he might do to her. After Krauth gave her statement, police arrested Agatheas.

When Agatheas was arrested five years after the murder, police found in his possession a backpack containing, among other items, a 45-caliber revolver. At trial, the State introduced the contents of the backpack, which — in addition to the revolver — included a bandana, latex gloves, a flashlight, batteries, a lighter, and a screwdriver. Agatheas’s counsel did not object to the introduction of this evidence.

Krauth testified at trial that in the weeks prior to the July 2000 murder, she had walked into her bedroom to find Aga-theas standing in front of a mirror dressed completely in black. She explained that Agatheas was wearing a bandana over his face and brandishing a revolver. When Krauth laughed at Agatheas’s appearance — which was described as “gangster” — Agatheas became angry and told her, “This is who I am.” Although Krauth did not know what caliber revolver Aga-theas was holding, she testified that she knew he owned a gun that he always kept in a backpack in her closet.

Krauth testified that on the day of the murder, she and Agatheas had a fight, after which Krauth left for work. Aga-theas was gone when Krauth returned home that evening, and shortly after arriving home, Krauth noticed that the backpack in which Agatheas kept his gun was also missing. Krauth was awakened later that night by a phone call from Agatheas, who asked Krauth to arrange for a friend to pick him up.

Krauth testified that a few nights later, she and Agatheas were watching television when a news story aired about Villano’s murder. Agatheas bragged to Krauth that he had murdered Villano because Vil-lano had raped one of his friends. Aga-theas also admitted that he had accidentally left his T-shirt at the scene of the crime and that after murdering Villano, he had driven Villano’s vehicle around listening to loud music before abandoning it.

Evidence introduced at trial established that police had recovered a black T-shirt containing Agatheas’s DNA at the crime scene, that Villano’s vehicle had been recovered near the pay phone from which Agatheas had called Krauth on the night of the murder, and that the radio in the vehicle was set at a loud volume. The State also introduced latex gloves that police had discovered between the abandoned vehicle and the pay phone that Agatheas had used to call Krauth.

In addition to the contents of Agatheas’s backpack, the State introduced a tape recording of police interviewing Agatheas shortly after the murder. During the interview, Agatheas admitted that he had previously owned other handguns, including at least one 38-caliber revolver. A repair receipt from a local gun shop— along with testimony by the gun shop owner and an investigating officer — established that Agatheas had owned a 38-caliber revolver around the time of the murder. Jennifer Gray, the forensic scientist who analyzed bullet casings recovered from the crime scene, testified that the bullets were consistent with being fired from 38-caliber revolver. The murder weapon was never recovered.

Agatheas was convicted by a jury of first-degree murder and was sentenced to life in prison. Agatheas appealed his conviction to the Fourth District, claiming that his counsel was ineffective for failing to object to the introduction of the 45-caliber revolver and the other contents of the backpack. Agatheas argued that his ineffective assistance of counsel claim should be addressed on direct appeal for the first time because the facts giving rise to his claim were apparent on the face of the record. Agatheas also claimed that the introduction of the revolver was highly prejudicial and that it was fundamental error for the trial court to admit the revolver into evidence.

The Fourth District affirmed Agatheas’s conviction and sentence, holding that because defense counsel had attacked Krauth’s credibility, the 45-caliber revolver and the bandana found in Agatheas’s backpack during his 2005 arrest were properly admitted as relevant to corroborate Krauth’s testimony. Agatheas, 28 So.3d at 207. The Fourth District held that the latex gloves found in the backpack were also admissible because similar gloves had been discovered on the path from the abandoned car to the pay phone that Agatheas used to call Krauth on the night of the murder. See id. The Fourth District also held that the trial court erred in admitting the remaining contents of the backpack — the flashlight, batteries, lighter, and screwdriver — because the State did not connect them to the murder; however, “the erroneous admission of these items did not undermine confidence in the outcome of the cause and ... the admission of the evidence was harmless.” Id. at 208. The Fourth District concluded that because the admission of each piece of challenged evidence was either proper or amounted to harmless error, it was unnecessary to address Agatheas’s fundamental error claim. Id.

Agatheas now claims that the Fourth District erred in its assessment of the admissibility of the revolver found in the backpack and therefore erred in denying his claims of fundamental error and ineffective assistance of counsel.

II. ANALYSIS

The issue we first consider is whether the admission of a gun recovered from a backpack that Agatheas had in his possession five years after the murder was erroneous when the gun had no connection to the charged crime. We have previously held that in order for evidence of a firearm to be admissible as relevant in a criminal trial, “the State must show a sufficient link between the weapon and the crime.” Jackson v. State, 25 So.3d 518, 528 (Fla.2009) (holding that testimony regarding a “little pistol” defendant carried was inadmissible where nothing in the record linked the “little pistol” to the gun used in the crimes charged). As the Fifth District recognized in Moore v. State, 1 So.3d 1177, 1178 (Fla. 5th DCA 2009), the basic rule that has been consistently followed by our appellate courts is that “if there was no evidence linking any of these firearms to the charged crime, evidence of the firearms would be irrelevant, and should have been excluded upon proper objection.”

More recently, in Green v. State, 27 So.3d 731, 737 (Fla. 2d DCA 2010), the Second District Court of Appeal held that the trial court erred in admitting three firearms found in the defendant’s home two days after the murder, none of which was tied to the charged offenses in any way. The State had argued, similar to the State in this case, that the firearms were relevant to corroborate witness testimony. Id. The State had asserted that “the firearms were relevant to corroborate the co-defendants’ testimony that Green had firearms at his home and that they went to Green’s house specifically to obtain firearms to use in the burglary.” Id. As to two of the three firearms, which were found in the bedroom of the defendant’s roommate, the Second District held that they were “completely irrelevant” because “[t]he fact that Green’s roommate possessed two .380 semiautomatic firearms that were not connected to the charged offenses did not tend to prove or disprove any material fact in controversy and thus had absolutely no relevance whatsoever.” Id. at 737-38. Accordingly, the Second District concluded that “those firearms should not have been admitted into evidence under any theory.” Id. at 738.

As to the remaining firearm, which was found in the defendant’s bedroom, the Second District held that it was “marginally relevant” because it “would tend to render the proposition that the codefendants went to his house to get a firearm more probable.” Id. However, the Second District then conducted the important balancing test under section 90.403, Florida Statutes, and determined that “any probative value of the firearm ... was outweighed by the danger of unfair prejudice.” Id. Utilizing the weighing test set forth in section 90.403 and the criteria set forth in Steverson v. State, 695 So.2d 687, 689 (Fla.1997), the Second District emphasized that evidence “requiring] an extended chain of inferences to be relevant or that suggests an improper basis for the jury’s verdict should be excluded.” Green, 27 So.3d at 738. The Second District concluded that “any possible probative value of [the] firearm ... was outweighed by the possibility that the jurors would improperly rely on this evidence to determine that since Green owned this .380 handgun, he must have owned another one that he used to commit the charged crimes.” Id.

In contrast to Green, the Fourth District in this case not only failed to evaluate the prejudicial effect of the evidence, but also failed to properly apply the law in holding that the 45-caliber was relevant. Here, the 45-caliber revolver was in no way connected to the murder. It is uncontested that the 45-caliber revolver was not the murder weapon. Instead, the Fourth District found it “relevant to corroborate [Krauth’s] testimony” and “relevant to her credibility.” Agatheas, 28 So.3d at 207. However, while Krauth’s credibility was in dispute, evidence that Agatheas carried a gun that could not possibly be the murder weapon in his backpack five years after the crime simply is not relevant to either the crime or Krauth’s credibility.

Krauth’s testimony centered on the events near the time of the crime — five years prior to Agatheas’s possession of the gun at issue — and her reasons for waiting five years to tell the police about Aga-theas’s admission. In holding that this completely unrelated gun was admissible, the Fourth District violated the clear rule that “the State must show a sufficient link between the weapon and the crime.” Jackson, 25 So.3d at 528. Moreover, “a significant time difference” between the crime and when the defendant possessed the gun affects whether the evidence is possibly relevant. Id. at 529.

There is no question that generally the evidence of the gun found five years later and unconnected to the crime would be completely irrelevant under our case law and basic evidentiary principles. The Fourth District nevertheless reasoned that the gun became relevant in order to “corroborate [Krauth’s] testimony” because she was impeached. Agatheas, 28 So.3d at 207. The question becomes whether the Fourth District’s reasoning survives legal scrutiny. The theory would be that the State was permitted to introduce extrinsic evidence (in this case the gun in the backpack) to support its witness’s credibility about what that witness observed five years earlier. On the subject of when extrinsic evidence is properly admitted to support a witness’s credibility regarding a matter on which the witness was impeached, Professor Charles Ehrhardt explains:

In determining whether extrinsic evidence is admissible to bolster credibility, counsel must determine which of the various types of impeachment were used by the opposing counsel. If there is evidence introduced to contradict the testimony of a witness, or the witness is contradicted on cross-examination, counsel may generally introduce evidence to contest the truthfulness of the alleged contradicting facts. For example, if counsel introduces extrinsic evidence that the witness and a party are business partners in order to attack the credibility of the witness by showing an interest in the outcome of the litigation, the opposing counsel may offer evidence to prove that the alleged business relationship does not exist.

Charles W. Ehrhardt, Florida Evidence § 611.2 (2010 ed.) (footnote omitted).

Here, the gun found in Agatheas’s backpack five years after the crime was not related to any of the matters on which Krauth was impeached. Krauth was impeached as to the following: her memory, her bias, and her prior inconsistent statements to law enforcement. Specifically, on cross-examination, defense counsel highlighted that Krauth could not remember the dates or the months during which the events occurred. Defense counsel elicited from Krauth that Agatheas was talking to an ex-girlfriend at the time when he and Krauth were dating and that this upset Krauth. Defense counsel also questioned Krauth about her prior inconsistent statements to the police, in which she did not tell them about Agatheas’s admission, and inquired about her reasons for waiting so long to come forward to the police even though she had not had contact with Aga-theas for years.

Nor was the 45-caliber revolver relevant to matters raised on redirect. On redirect, the State established that Krauth had not seen Agatheas in years and had since moved on with her life and, thus, this was not a situation in which she felt scorned or angry. Rather, she was scared of Aga-theas, which was the reason she waited so long to tell the police about his admission.

The next day, through the direct examination testimony of the lead investigator, the State introduced evidence that a gun was found in Agatheas’s possession at the time of his arrest, as well as the other items found in the backpack:

STATE: Okay, and when [Agatheas] was taken into custody, was there a particular item that was in his possession?
INVESTIGATOR: A backpack.
STATE: Okay. Now what did [Krauth] indicate to you about the backpack, regarding the backpack?
INVESTIGATOR: That Nicholas Aga-theas always had a backpack at the residence and usually carried his guns within the backpack.
STATE: ... What do you see that’s in State’s Exhibit 122 E [a photograph of the backpack and its contents]?
INVESTIGATOR: A firearm, bullets, the backpack, playing cards, gloves, a flashlight, a screwdriver, a lighter, batteries, a bandana.
STATE: And, what type of gun was in his possession?
INVESTIGATOR: I think it was a Smith & Wesson 45-caliber, I believe.

Although the State referenced Krauth’s testimony when introducing evidence of the gun, this extrinsic evidence was unrelated to her testimony or to the matters on which she was impeached.

Additionally, all of the cases cited by the Fourth District to support its conclusion that evidence of the gun was admissible address the admissibility of photographs that were clearly relevant to the crime, specifically photographs of the victim or the crime scene. See Czubak v. State, 570 So.2d 925, 928-29 (Fla.1990) (discussing whether gruesome photographs of the victim’s body were admissible); Williams v. State, 834 So.2d 923, 925-26 (Fla. 3d DCA) (addressing the issue of whether a photograph of the victim wearing a full military uniform with an American flag in the background was admissible), quashed in part on other grounds, 863 So.2d 1189 (Fla. 2003); Kirby v. State, 625 So.2d 51, 53-54 (Fla. 3d DCA 1993) (examining whether photographs of the crime scene were admissible). These cases are clearly inappo-site. The photographs at issue in Czubak, Williams, and Kirby were clearly relevant to the crime, and the court in those cases focused on whether the photographs were relevant and, if so, whether the photographs were so inflammatory as to create undue prejudice or improperly generate sympathy for the victim. Here, the gun was irrelevant to the crime, Krauth’s testimony, and the matters on which she was impeached.

Simply put, none of the cases cited by the Fourth District stands for the proposition that corroboration of a witness’s testimony by extrinsic evidence, no matter how tenuous, is in itself relevant to prove a material fact. Because the gun was not linked to the crime and not otherwise relevant to Krauth’s credibility, it was not relevant to a material fact at issue. This is contrasted to other evidence properly introduced by the State that corroborated Krauth’s testimony, such as telephone records and a black T-shirt found at the crime scene that contained Agatheas’s DNA.

We emphasize that the mere fact that Krauth was impeached by the defense did not open the door to any and all otherwise inadmissible extrinsic evidence. The job of the defense lawyer is to cross-examine the State’s witness to raise questions about his or her credibility. Section 90.608, Florida Statutes (2006), specifies the permissible methods of impeachment, including by introducing the witness’s inconsistent statements or showing that the witness is biased. If simply cross-examining a witness opens the door to permitting the State to introduce extrinsic evidence to “corroborate” the witness’s testimony on any matter, even those that were not the subject of cross-examination, such an exception would eviscerate the extremely important proposition that evidence of bad character, prior bad acts, or propensity is generally inadmissible. Just as we have explained that the State cannot rely on the law of impeachment- to introduce impermissible prior crime's evidence, see Robertson v. State, 829 So.2d 901, 913 (Fla.2002), the State likewise cannot rely on the concept of “corroboration” to introduce through the back door clearly inadmissible evidence of a gun unrelated to the crime.

Under the facts of this case, the only possible relevance of the 45-caliber revolver would be to demonstrate Aga-theas’s bad character or propensity. However, it is axiomatic that evidence of collateral crimes, wrongs, or acts committed by the defendant is not admissible where its sole relevance is to prove the bad character or propensity of the accused. See Wright v. State, 19 So.3d 277, 291-92 (Fla.2009) (“[C]ollateral-crime evidence, such as bad acts not included in the charged offenses, is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.”); see also Czubak, 570 So.2d at 928; Castro v. State, 547 So.2d 111, 114-15 (Fla.1989). In fact, this Court has consistently held that the erroneous admission of irrelevant collateral crimes evidence “is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt.” Robertson, 829 So.2d at 913-14 (quoting Castro, 547 So.2d at 115); see also Czubak, 570 So.2d at 928 (holding that collateral crime evidence that defendant was an escaped convict was presumptively harmful).

In addition, even assuming evidence that Agatheas possessed a different gun five years after the crime was relevant to a material fact in issue, the Fourth District failed to perform the critical balancing analysis under section 90.403. Evidence is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. Here, the confusing and misleading effect of the 45-caliber revolver substantially outweighs any probative value, rendering it inadmissible.

The testimony at trial established that the murder weapon was never recovered, that Agatheas gave conflicting accounts regarding the whereabouts of the gun he owned before the murder, and that the murder weapon could have been one of several calibers, such as “a .38 Special, .357, nine-millimeter, and .380.” By introducing a weapon entirely unconnected to the crime charged, the State further confused the already unclear evidence regarding the murder weapon. This confusion was compounded by the fact that the State introduced the contents of Agatheas’s backpack — including the 45-caliber revolver — a full day after Krauth’s testimony and through the direct-examination testimony of the lead investigator in the case.

The misleading effect of the 45-caliber revolver is evidenced by the State’s reference to the gun during its closing argument. At closing, the State claimed that the 45-caliber revolver recovered from Agatheas was “just like” the type of weapon used in the murder, only “a little bigger.” While this statement indicates that the 45-caliber revolver was similar to— even almost identical to — the type of gun used in the murder, evidence at trial indisputably ruled out the 45-caliber revolver as the murder weapon.

Because the evidence of the gun found upon Agatheas’s arrest was inadmissible, and because any purported relevancy was substantially outweighed by the danger of confusing the issues and misleading the jury, the admission of the 45-caliber revolver, the photographs of the gun, and testimony regarding the gun was unquestionably error.

We next discuss the remaining contents found in Agatheas’s backpack when he was arrested, photographs of which were introduced at trial. The Fourth District held that the bandana found in the backpack was admissible under the same theory of relevance as the 45-caliber revolver. See Agatheas, 28 So.3d at 207. We disagree. Krauth testified that she saw Agatheas wearing a bandana in the weeks before the murder. However, there was no evidence that the bandana recovered from Agatheas’s backpack in 2005 was the same bandana that Krauth saw Agatheas wearing before the murder. Further, there was no evidence that Aga-theas wore a bandana when he committed the murder. Because the bandana bears no relevance to either the crime or Krauth’s credibility, the Fourth District also erred in holding that the bandana was admissible.

We also disagree with the Fourth District that the latex gloves recovered from Agatheas’s backpack were relevant and admissible. Although latex gloves were discovered in the area between the abandoned vehicle and the pay phone Aga-theas used to call Krauth on the night of the murder, there was no evidence that the gloves found by the abandoned vehicle were used during the murder. There was likewise no evidence that the latex gloves found in Agatheas’s backpack five years later were the same kind of gloves. Moreover, the latex gloves were recovered from Agatheas’s backpack nearly five years after police discovered the latex gloves between the abandoned vehicle and the pay phone. See Jackson, 25 So.3d at 529 (noting that the “significant time difference” between the crime and the evidence at issue factored into the finding that the evidence was irrelevant). The fact that Agatheas owned latex gloves five years after the murder was simply not relevant to the crime.

The Fourth District, however, was correct in holding that the remainder of the backpack’s contents — the flashlight, batteries, lighter, and screwdriver — were improperly admitted into evidence at trial. No evidence at trial connected any of these items to the murder.

Although the Fourth District held that the error in admitting the remaining items from the backpack did not undermine confidence in the outcome and did not constitute reversible error, the cumulative effect of all of the trial court’s errors must be considered in light of our holding today. See Penalver v. State, 926 So.2d 1118, 1137 (Fla.2006) (noting that where multiple errors exist, appellate courts must consider whether the cumulative effect of those errors deprived the defendant of fair trial).

III. CONCLUSION

For the foregoing reasons, we quash the Fourth District’s decision affirming the trial court’s admission of the 45-caliber revolver, bandana, and latex gloves. We remand to the Fourth District for reconsideration of Agatheas’s claims in light of our holding.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, C.J.,

dissenting.

I disagree with the majority’s conclusion that the Fourth District’s decision in Agatheas v. State, 28 So.3d 204 (Fla. 4th DCA 2010), expressly and directly conflicts with the Fifth District’s decision in Moore v. State, 1 So.3d 1177 (Fla. 5th DCA 2009). Accordingly, I would discharge jurisdiction.

In Moore, the Fifth District held that the postconviction court erred in summarily denying Moore’s claim that her trial counsel was ineffective in failing to object when the State introduced evidence of several firearms discovered at Moore’s house. Id. at 1178. In so holding, the Fifth District stated that “the trial court confusingly reasons that this ‘evidence was relevant, and Counsel clarified that none of the firearms found inside [Moore’s] residence could have fired the caliber of projectile recovered from the victim.’ ” Id. The Fifth District disagreed with the trial court, concluding that “if there was no evidence linking any of these firearms to the charged crime, evidence of the firearms would be irrelevant, and should have been excluded upon proper objection.” Id. The Fifth District therefore reversed the postconviction court’s summary denial of Moore’s claim and remanded for an evidentiary hearing on that claim only. Id. at 1179.

In Agatheas, however, the Fourth District expressly held that the .45 caliber revolver recovered from Agatheas’s backpack was “relevant to corroborate” prosecution witness Krauth’s testimony in response to the defense’s challenge to her credibility. 28 So.3d at 207. The .45 was not introduced by the State as evidence of Agatheas’s guilt but instead was offered to support the impeached witness’s “testimony regarding her observations around the time the crime was committed.” Id. No similar argument for relevance was considered in Moore. See 1 So.3d at 1178-79. The Fifth District’s decision in Moore is therefore factually distinguishable from the case on review.

There is no basis for this Court to exercise jurisdiction over this case. I therefore dissent.

POLSTON, J., concurs.

      . Agatheas also raises the claim that in light of the federal charges facing his counsel before and during Agatheas’s trial, the trial court committed reversible error by failing to ensure that Agatheas made a knowing and intelligent waiver of his right to conflict-free counsel. Because the Fourth District did not specifically address this claim, and it is outside the scope of the conflict issue, we decline to address it. See Kasischke v. State, 991 So.2d 803, 815 (Fla.2008) (declining to decide issue that the district court did not address and that was outside the scope of the conflict). However, this issue may be relevant to a claim of ineffective assistance of counsel, which we do not reach.

      . Section 90.403 provides in relevant part: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

      . Czubak, 570 So.2d at 929 (concluding that the photographs of the victim’s body had little or no relevance because they could not establish identity, were not probative as to the cause of death, and bore little relevance to the circumstances surrounding the murder, and that any relevance was outweighed by the shocking and inflammatory nature of the photographs); Williams, 834 So.2d at 926 (holding that because the photograph of the victim was for identification purposes only and the victim’s military service was never discussed at trial, even if the photograph did evoke sympathy from the jury, it was not reversible error to admit it); Kirby, 625 So.2d at 53-54 (holding that the photograph of the crime scene was relevant because it helped to explain and corroborate the victim’s testimony and that it was not so inflammatory so as to create undue prejudice in the minds of the jurors).