author: WELCH, Judge.

text:
    W.R.C. v. STATE of Alabama.
    CR-08-1640.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    Rehearing Denied Dec. 10, 2010.
    Certiorari Denied March 4, 2011 Alabama Supreme Court 1100357.

      Douglas H. Scofield, Chelsea, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   WELCH, Judge.

W.R.C. was convicted of sodomy in the first degree, a violation of § 13A-6-63(a)(3), Ala.Code 1975, and of sexual abuse in the first degree, a violation of former § 13A-6-66(a)(3), Ala.Code 1975. He was sentenced to 20 years’ imprisonment for the sodomy conviction and to 10 years’ imprisonment for the sexual-abuse conviction, the sentences to run concurrently.

The evidence adduced at trial indicated the following. L.O. lived with his grandmother, E.O., from the time he was born until he was 13 years old. L.O., who was 17 years old at the time of trial in 2009, testified that when he was approximately 7 years old, E.O.’s then husband, W.R.C., sexually assaulted him over the span of a month. L.O. said the first incident occurred when he was in the bathtub; W.R.C. got in the bathtub with him and washed his back. After the bath, L.O. said, W.R.C. told him to go to E.O.’s room and wait while he brought L.O. some clothes. L.O. testified that he was clad in a towel and that, after W.R.C. brought him clothes, he tried to get dressed, but W.R.C. would not let him and laid him on his back on the bed. L.O. said that W.R.C., who was nude, began rubbing up against him and kissing the upper part of his body. When L.O. questioned W.R.C. and told him to stop, W.R.C. told him it was okay and to be quiet. L.O. testified that W.R.C. then turned him over onto his stomach and inserted his penis into L.O.’s anus. During the assault, L.O. said, he cried loudly because of the pain he was experiencing, and W.R.C. put his hand over L.O.’s mouth. L.O. said that the assault ended when his next-door neighbor, C.W., knocked on the front door and questioned W.R.C. about L.O.’s screaming. According to L.O., W.R.C. told C.W. either that L.O. was just playing around or that L.O. had just received a “whipping.” (R. 66.) After the incident, L.O. said, W.R.C. told him to “keep this between us” and threatened that if L.O. told anyone, he would kill both L.O. and E.O. (R. 74.)

L.O. testified that the second incident occurred a couple of nights later while he and W.R.C. were in the living room and E.O. was upstairs in her bedroom. L.O. said that, this time, W.R.C. rubbed his genitals, first doing so over L.O.’s clothes and then putting his hand inside L.O.’s pants. L.O. said that W.R.C. then unbuttoned his pants, “pulled his penis out,” and forced L.O. to “caress him.” (R. 72.) According to L.O., W.R.C. then asked him to “taste it.” (R. 72.) L.O. stated that he initially refused but that W.R.C. again threatened E.O.’s life, so he complied and performed oral sex on W.R.C. L.O. testified that W.R.C. forced him to perform oral sex on W.R.C. several times after this incident.

L.O. testified that the last time W.R.C. sexually assaulted him was on E.O.’s birthday. According to L.O., he was asleep on the couch that evening, after E.O. had gone out with friends to celebrate her birthday, when he awoke to a sharp pain in his anus and discovered that W.R.C. had again inserted his penis into L.O.’s anus. L.O. said that he begged W.R.C. to stop and that W.R.C. then stopped and promised L.O. that it would never happen again, and, in fact, it did not happen again according to L.O.

L.O. testified that he did not tell anyone about the assaults at the time they occurred because he did not want to talk about it; because he knew no one else who was suffering from something similar; because even though E.O. and W.R.C. separated shortly after the incidents, they still communicated; and because he did not want to hurt his grandmother. L.O. denied repressing any memories of the assault, stating that he always remembered but that he just did not tell anyone. However, L.O. said that he moved in with his aunt when he was approximately 18 years old, that they became close after he had lived with her for a couple of years, and that, when he was 15 or 16 years old, he confided in her about the assaults.

W.R.C. called several character witnesses to testify in his defense and also testified on his own behalf. He denied the allegations against him.

I.

W.R.C. first contends on appeal that the trial court erred in allowing what he claims was expert testimony regarding Child Sexual Abuse Accommodation Syndrome (“CSAAS”) and delayed disclosure by child sexual-abuse victims from Maribeth Thomas, the clinical director of the Prescott House Child Advocacy Center, because, he says, such testimony is inadmissible under Rule 702, Ala. R. Evid., and Rule 403, Ala. R. Evid. Specifically, W.R.C. argues that there is no consensus in the scientific community as to the “typical” reaction a child has to sexual abuse and, thus, that evidence indicating that someone exhibits behaviors associated with CSAAS does not indicate that someone has actually been abused; instead, W.R.C. argues, a diagnosis of CSAAS assumes that abuse has occurred. Therefore, W.R.C. concludes, testimony regarding CSAAS is unreliable and can never “assist the trier of fact” under Rule 702, and, W.R.C. asserts, its prejudicial effect outweighs any probative value under Rule 403. W.R.C. recognizes this Court’s opinions in Sexton v. State, 529 So.2d 1041 (Ala.Crim.App.1988), and Sciscoe v. State, 606 So.2d 202 (Ala.Crim.App.1992), in which this Court held that expert testimony in child-abuse cases is generally admissible if it assists the trier of fact in understanding the evidence presented. However, he argues that those cases were decided before Rule 702 was adopted and, thus, are not applicable to a Rule 702 analysis, which, he claims, requires a determination by the trial court of the reliability of the proffered testimony before its admission.

The record reflects that just before the State called Thomas, its last witness, W.R.C. moved in limine to prohibit her testimony. W.R.C. made the same arguments to the trial court as he does on appeal. When specifically arguing that Thomas should not be allowed to testify that certain conduct exhibited by L.O. is consistent with children who have been sexually abused, the prosecutor pointed out that Thomas had never interviewed or even met L.O. and that she was not going to testify about L.O. at all. The prosecutor then indicated that Thomas’s testimony would be limited to

“children and adolescents who have been abused and delay in disclosing that abuse based upon her personal experience [working with abused children] as well as her familiarity with a large bank of information used around the country as to why children normally do not disclose or why they disclose, as well as the difference between male victims and female victims in disclosing, disclosure when the perpetrator is a family member versus a stranger, and reasons for delays and disclosure....
“[and] the bond that children typically have to build in order to have a trust relationship with somebody to disclose, that it’s normal for children not to know specific days of abuse unless there’s something significant attached to that....”

(R. 246-47.) In response, W.R.C. argued, as he does on appeal, that there is no consensus in the scientific community as to the typical reaction a child has to sexual abuse and, thus, that any testimony regarding typical reactions to sexual abuse would be inadmissible under Rule 702. The trial court denied the motion in limine, finding the expected testimony of Thomas to be admissible under Rule 702, and it informed W.R.C.’s counsel that further objections to Thomas’s testimony would not be necessary.

Thomas was then certified by the court, over W.R.C.’s objection, as an expert in child development and child and adolescent sexual abuse, and she testified that, in her experience and based on research done in the subject area, child victims of sexual or physical abuse do not always disclose the abuse and that nondisclosure may be because the perpetrator is an adult or a family member, because the child does not have the vocabulary to describe the abuse, because the child fears the consequences of disclosure, or because the perpetrator has threatened the child. Thomas testified “that both experientially and the research indicates that male victims are less likely to disclose than female victims” (R. 265), and that there is a “significant difference” between males and females with respect to delayed disclosure. (R. 270.) She testified that when the perpetrator is a family member, both her experience and research in the area indicate that child victims are more likely not to disclose or to delay disclosure. With respect to delayed disclosure, Thomas said that statistics indicate child sexual-abuse victims “more often than not” delay disclosing the abuse. (R. 281.) She also testified that such delayed disclosure may be the result of a lack of understanding of how to make the disclosure, which is why sometimes children will disclose in the fifth or sixth grade, when the state begins sex education for students. She also said that delayed disclosure could be the result of fear by the child victim of the consequences of disclosing the abuse. According to Thomas, when disclosure is made, it is typically made to someone the child victim trusts. Thomas also testified that it is not unusual for a child victim not to be able to provide a specific date that the abuse occurred unless the abuse occurred on a typically memorable day, such as Christmas or a birthday. Defense counsel thoroughly cross-examined Thomas, eliciting from her that every child is different and that not all children react the same way to abuse— some child victims show no signs of dysfunction at all, while others show dramatic signs of dysfunction. Defense counsel also elicited testimony from other witnesses, including L.O., that L.O. exhibited no signs of dysfunction, had good grades in school, and was active in extracurricular activities at school.

Initially, we note that the State argues that W.R.C.’s appellate arguments regarding the admissibility of testimony regarding CSAAS are not properly before this Court for review and are meritless because, it says, no testimony regarding CSAAS was introduced at trial. We agree with the State, to an extent, that W.R.C.’s characterization of Thomas’s testimony as CSAAS testimony is questionable. CSAAS is essentially a “profile” of child sexual-abuse victims that contains a list of characteristics and behaviors that are allegedly “typical” of such victims, such as (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) retraction. See, e.g., Elizabeth Trainor, Annotation, Admissibility of Expert Testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) in Criminal Case, 85 A.L.R.5th 595 (2001), and the cases cited therein. Thomas, however, did not testify regarding any syndrome or about any “typical” characteristics of abused children; her testimony was limited to delayed disclosure by some child victims and the possible reasons for such delayed disclosure. All of her testimony was based on her own experience in working with abused children and on research that had been done in the field of abused children. In addition, as noted above, Thomas specifically testified on cross-examination that all children are different and that every child victim reacts differently to abuse. Thus, we seriously question whether Thomas’s testimony can be considered testimony regarding CSAAS.

That being said, delayed disclosure is considered one element of CSAAS, and, as such, Thomas’s testimony in this regard is not necessarily outside the realm of CSAAS testimony. For the purposes of this opinion, then, we presume that Thomas’s testimony falls within the category of CSAAS testimony, and we address it as such.

Rule 702, Ala. R. Evid., provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

In addition, Rule 403, Ala. R. Evid., provides:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Relying on Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999), W.R.C. argues that “the threshold determination for the admissibility of non-scientific evidence under Rule 702 is reliability, not whether the testimony will assist the trier of fact” (W.R.C.’s brief at p. 28), and that because there is no consensus in the scientific community as to the “typical” characteristics or behaviors of sexually abused children, testimony about CSAAS cannot satisfy the reliability requirement for admission under Rule 702. In Simmons, this Court engaged in a lengthy analysis of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), in determining whether nonscientific expert testimony regarding crime-scene analysis and victimol-ogy was admissible under Rule 702. In doing so, this Court implicitly suggested that the Daubert standard for admissibility of scientific evidence — including reliability of proffered testimony — is applicable to nonscientific expert testimony, such as Thomas’s testimony in this case. However, as this Court later clarified in Barber v. State, 952 So.2d 393 (Ala.Crim.App.2005), although Simmons referred to Daubert and Kumho, “we did not specifically hold [in Simmons ] that Daubert governs the admissibility of nonscientific expert testimony,” and “we do not [now] read Simmons to require that the admissibility of nonscientific expert testimony be governed by Daubert.” 952 So.2d at 415. Further, this Court specifically noted in Barber that Rule 702 alone, and not Daubert, Kumho, or Frye v. United, States, 293 F. 1013 (D.C.Cir.1923), governed the admissibility of nonscientific expert testimony, and we held that nonscientific expert testimony regarding fingerprint examination “satisfied the requirements of Rule 702” when (1) the witness was qualified as an expert in the field and (2) the testimony assisted the jury in determining a fact in issue, i.e., the defendant’s guilt. 952 So.2d at 417. Rule 702 contains no requirement that the expected testimony be reliable under Daubert; it requires only that the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue,” and this Court in Barber expressly rejected any interpretation of Simmons that would require a reliability determination under Daubert before admission of nonscientific expert testimony under Rule 702. Therefore, W.R.C.’s reliance on Simmons is misplaced, and his argument that reliability is a threshold requirement for admission of testimony about CSAAS under Rule 702 is meritless.

Thomas’s testimony clearly satisfies the requirements of Rule 702 and Rule 403. Thomas was certified by the trial court as an expert in the areas of child development and child and adolescent sexual abuse, and her testimony regarding delayed disclosure, based on her specialized knowledge in those fields, clearly assisted the jury to understand the evidence presented regarding L.O.’s waiting almost 10 years to report his abuse. Moreover, Thomas’s testimony was general in nature, and no testimony was presented about L.O. specifically. At no time did Thomas testify that L.O.’s behavior was consistent with children who had been sexually abused or that she believed L.O.’s accusations. Nor did Thomas opine that L.O. had been sexually abused. Finally, L.O.’s credibility was the central issue in the case, because he was the sole witness presented by the State in support of the charges against W.R.C., and defense eoun-sel challenged L.O.’s credibility on cross-examination. Under these circumstances, we cannot say that the prejudicial effect of Thomas’s testimony outweighed its probative value.

We note that other jurisdictions have held similar testimony to be admissible in child-sexual-abuse cases. See, e.g., People v. Perez, 182 Cal.App.4th 231, 105 Cal. Rptr.3d 749 (Cal.Ct.App.2010) (general rule in California is that, although CSAAS testimony is not admissible to prove the crime charge actually occurred, it is admissible to rehabilitate the credibility of the victim when the defendant suggests that the victim’s conduct, such as a delay in disclosing the abuse, is not consistent with the claim of abuse); People v. Bassett, 55 A.D.3d 1434, 866 N.Y.S.2d 473 (2008) (testimony regarding CSAAS is admissible to assist the trier of fact in understanding unusual conduct of victims as long as the testimony is general in nature and does not attempt to prove the charged crimes); State v. Schnabel, 196 N.J. 116, 952 A.2d 452 (2008) (general rule in New Jersey is that CSAAS testimony is admissible to explain traits sometimes found in abused children that could undermine the victim’s credibility and to dispel preconceived conceptions regarding victims of abuse); Sanderson v. State, 165 P.3d 83 (Wy.2007) (general rule in Wyoming is that CSAAS testimony is admissible to dispel misconceptions regarding victims of abuse if a victim’s post-abuse behavior is an issue in the case, such as when a victim recants allegations of sexual abuse; then testimony regarding that particular aspect of CSAAS is admissible); Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir.2003) (noting that “CSAAS testimony is admissible in federal child-sexual-abuse trials, when the testimony concerns general characteristics of victims and is not used to opine that a specific child is telling the truth”). But see Sanderson v. Commonwealth, 291 S.W.3d 610 (Ky.2009) (general rule in Kentucky is that CSAAS testimony is not admissible under any circumstances).

Therefore, we find no abuse of discretion on the part of the trial court in allowing Thomas’s testimony.

II.

W.R.C. also contends on appeal that the trial court erred in not providing him with funds to hire an expert on CSAAS to rebut the State’s expert. He argues that failure to provide him with funds denied him his right to a fair trial. We agree with the State that this issue was not properly preserved for review.

The record reflects that, before trial, W.R.C. simultaneously filed three motions for funds for experts: (1) a “Motion for Funds for Psychiatrist”; (2) a “Motion for Private Psychiatric Examination and Testing”; and (3) a “Motion for Appointment of Certain Experts.” (C. 77-89.) W.R.C. attached to the second motion a memorandum entitled “Memorandum of Points and Authorities in Support of Motion for Funds for Experts and Investigators.” (C. 79.) In the first two motions, W.R.C. requested that the trial court “grant him the right” to have the victim, L.O., examined so that L.O.’s “sanity and/or mental illness at the time of the alleged offense and at the present time” could be determined and requested funds to hire a psychiatrist “whose specialty is criminal psychopathic behavior” to conduct such an examination of L.O. In his memorandum attached to the second motion, W.R.C. made a lengthy argument regarding an indigent defendant’s right to investigative and expert assistance, citing numerous cases and arguing that the failure to provide such assistance violates various provisions of the United States Constitution. W.R.C., however, did not further specify in that memorandum any other specific expert he wanted to hire, other than a brief reference to “an investigator with sociological training” to discover information regarding W.R.C.’s background and history. (C. 85.) In his third motion, W.R.C. requested that the trial court appoint a “[psychiatrist” and “[ajpprove funds to hire a [p]sychiatrist.”

At a pretrial hearing on the motions, W.R.C.’s counsel stated that all three motions were “somewhat similar,” and when asked by the court ‘You’re not trying to test the defendant. You’re trying to test the victim, right[,]” counsel responded in the affirmative (R.Supp. 18) and then made a lengthy argument about why he believed L.O. had psychological issues and why he should be allowed to have L.O. evaluated by an expert. At no point during the hearing did W.R.C.’s counsel request funds to hire an expert on CSAAS to rebut the State’s expert. Indeed, when the trial court specifically mentioned the “Motion for Appointment of Certain Experts,” W.R.C.’s counsel stated that that motion “was tied into what we previously discussed” regarding having L.O. examined. (R.Supp. 23.)

The trial court denied the motions, with the following notations on the case-action-summary sheet:

“Defendant’s Motion for private psychiatric examination and testing — Denied. The Court is not aware of any case law allowing the defense to require that an alleged victim be subjected to psychiatric testing. In fact, Barger v. State, 562 So.2d 650 (Ala.Crim.App.1989) clearly indicates that there is no ‘statute or other authority which would authorize a trial court to order the psychological examination of a child victim of sexual abuse.’ Following the hearing held on July 18, 2008 addressing all pending motions, the Court reviewed documents received from the Alabama Department of Human Resources which are presently under seal. In this Court’s opinion, nothing in those documents supports the Defendant’s assertion that the alleged victim should be ordered to be examined by a psychiatrist or professional mental health expert.
“Defendant’s Motion for Funds for Psychiatrist — Moot based upon the Court’s denial of Defendant’s motion for private psychiatric examination.
“Defendant’s Motion for appointment of certain experts — See Ruling on last two motions.”

(C. 16-17.)

In his motion for a new trial, W.R.C. noted that the State had presented two experts and argued that the trial court had erred in denying his “Motion for Appointment of Certain Experts” so that he could “rebuke” the testimony of the State’s experts. (C. 128.) At the hearing on the motion for a new trial, W.R.C.’s counsel then made the following statement':

“Judge, there was two expert witnesses called by the State. One was Maribeth Thomas, who was a counselor. And the other one was the doctor. And the doctor’s name is Dr. David Bernard.
“The defendant did not have an expert witness. We had filed a motion to appoint expert witnesses. We had filed a motion for funds for an expert witness, and Your Honor denied those requests.”

(R. 458.) However, W.R.C.’s counsel then moved on to other arguments, devoting the majority of his argument at the hearing to the trial court’s denial of his request for funds to hire a psychiatrist to evaluate L.O., the trial court’s denial of his motion in limine to prohibit Thomas’s testimony, and the trial court’s refusal to allow him to view the videotape of an interview with L.O. at the Prescott House. The trial court noted during the hearing that it had denied W.R.C.’s request for funds because he was not entitled to have the victim evaluated and the State likewise pointed out that the trial court had already ruled on W.R.C.’s request for an appointment of a psychiatrist to evaluate the victim and argued that it was not a proper subject for a motion for a new trial.

W.R.C. argues in his reply brief that his “Motion for Appointment of Certain Experts” properly preserved his argument that he was entitled to funds to hire an expert on CSAAS to rebut the State’s expert, and he points out that his counsel’s statements at the hearing on the motion for a new trial indicate that “counsel believed that the issue” of funds to hire an expert to rebut the State’s expert had been raised in his pretrial motions. (W.R.C.’s reply brief at p. 12.) However, the record clearly shows that W.R.C.’s counsel was the only one who thought that W.R.C. had requested funds to hire an expert to rebut the State’s expert. Both the State and the trial court believed that W.R.C.’s only request for funds was for a psychiatrist to examine the victim. As the Alabama Supreme Court explained in Ex parte Parks, 923 So.2d 380 (Ala.2005):

“The critical consideration for the preservation of error for appellate review is that the trial court be sufficiently informed of the basis of the defendant’s argument. We have stated:
“ ‘ “Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court’s failure to act constitutes prejudicial error .... An objection without specifying a single ground, such as ‘I object,’ ‘objection,’ or ‘we object’ is not sufficient to place the trial court in error for overruling the objection.” ’ ”

923 So.2d at 333 (emphasis added) (quoting Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)).

Here, the trial court was clearly not aware that W.R.C. wanted funds to hire an expert on CSAAS to rebut the State’s expert, and W.R.C.’s general “Motion for Appointment of Certain Experts,” requesting only a “psychiatrist,” with no explanation as to the reason for the request, was not sufficient to put the trial court on notice that he wanted an expert on CSAAS to rebut the State’s expert, especially considering that that motion was filed simultaneously with his other motions and W.R.C.’s counsel specifically argued at the pretrial hearing on those motions that all three encompassed the same request: a psychiatrist to evaluate L.O. Therefore, W.R.C.’s pretrial motions did not preserve this issue for review.

Moreover, W.R.C.’s raising of the issue of funds to hire an expert to rebut the State’s expert in his motion for a new trial was untimely and was not sufficient to preserve this issue for review. It is well settled that “[gjrounds urged in a motion for a new trial must ordinarily have been preserved at trial by timely and sufficient objections.” Williams v. State, 710 So.2d 1276, 1311 (Ala.Crim.App.1996). Because W.R.C. did not timely request funds to hire an expert on CSAAS to rebut the State’s expert, this issue was not properly preserved for review and will not be considered.

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

AFFIRMED.

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

      . Section 13A-6-66, Ala.Code 1975, was amended effective July 1, 2006, after the date of the act forming the basis of W.R.C.’s conviction, to remove subsection (a)(3) (the sexual abuse of a child less than 12 years old); that subsection was placed in § 13A-6-69.1, Ala.Code 1975, and the offense was increased from a Class C felony to a Class B felony.

      . E.O. and W.R.C. separated shortly after the incidents giving rise to the charges against W.R.C., and they divorced in 2004.

      . E.O. was not at home at the time.

      . C.W. testified at trial that she recalled the day she heard L.O. "hollering,” and she confirmed L.O.’s testimony that W.R.C. told her that L.O. was just "playing.” (R. 158-59.) She also stated that she mentioned it to E.O. the following day, but C.W. said that she did not think anything was wrong. E.O. also testified at trial and confirmed that C.W. had mentioned to her about hearing L.O. hollering. E.O. stated that this occurred during the time she was married to, and living with, W.R.C.

      . W.R.C. filed a written motion in limine in court and also argued orally that Thomas’s testimony should be prohibited.

      . He also made additional arguments to the trial court that he does not pursue on appeal. We do not address those arguments. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim. App.1995) ("We will not review issues not listed and argued in brief.”).

      . W.R.C. does not assert on appeal that Thomas was not properly certified as an expert.

      . Because we conclude that Thomas's testimony was admissible under Rule 702, we need not address W.R.C.’s argument that this Court’s holdings in Sexton and Sciscoe, supra, did not survive the adoption of Rule 702.

      . We note that, in the record on appeal, the memorandum appears just behind the third motion — the "Motion for Appointment of Certain Experts.” However, at the pretrial hearing on the motions, the trial court stated that the memorandum was actually attached to the second motion — the "Motion for Private Psychiatric Examination and Testing.”

      . In addition to Thomas, the State also presented testimony from David Bernard, a pediatrician and the director of the Children's Hospital Intervention and Prevention Services (“CHIPS”) Clinic at Children's Hospital in Birmingham, regarding child sexual abuse.


source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    The BIONETICS CORPORATION, Petitioner, v. Frank W. KENNIASTY, etc., et al., Respondents.
    No. SC09-1243.
    Supreme Court of Florida.
    Feb. 10, 2011.
    Rehearing Denied Sept. 6, 2011.

      Joe Teague Caruso of Caruso, Swerbi-low and Camerota, P.A., Merritt Island, FL, for Petitioner.
    Frank W. Kenniasty, pro se, Melbourne, FL; Judith Deitz, and William Moore, pro se, Silver Springs, FL, for Respondents.
   LABARGA, J.

In the case before us, The Bionetics Corporation (“Bionetics”) seeks review of the decision of the Fifth District Court of Appeal in Kenniasty v. Bionetics Corp., 10 So.3d 1183 (Fla. 5th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

This case concerns the applicability of the safe harbor provision contained in section 57.105, Florida Statutes (2002). Generally speaking, section 57.105 provides the basis for sanctions against parties and counsel who assert frivolous claims or defenses or pursue litigation for the purpose of unreasonable delay. See § 57.105, Fla. Stat. (2002). This statute was amended to include a safe harbor provision under subsection (4), which took effect on July 1, 2002, while the present case was ongoing at the trial level. See ch.2002-77, §§ 1-2, at 908-09, Laws of Florida. Section 57.105(4) provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

§ 57.105(4), Fla. Stat. (2002).

The conflict issue presented for our determination is whether the safe harbor provision of section 57.105(4), Florida Statutes, applies where a party’s frivolous claims were originally filed before the provision became effective, but the initial motion seeking attorney’s fees was filed in court after the provision became effective without the motion first having been served on the opposing party twenty-one days before filing. As explained in greater detail below, the Fifth District in Ken-niasty held that the safe harbor provision contained in section 57.105(4) applies in a case where the party seeking sanctions filed its motion for attorney’s fees after the safe harbor provision took effect despite the fact that the lawsuit commenced prior to the effective date of section 57.105(4). Kenniasty, 10 So.3d at 1186. In contrast, the First District in Walker held that the safe harbor provision cannot apply to a case where the complaint was filed and the alleged legal harm occurred prior to the effective date of the safe harbor provision. Walker, 946 So.2d at 71-72. We conclude that the safe harbor provision does not apply to a case where claims found to be frivolous by a trial court were originally filed before the safe harbor provision took effect. We therefore quash the decision of the Fifth District in Kenniasty to the extent that it is inconsistent with this opinion, and approve the decision of the First District in Walker to the extent that it is consistent with our analysis and holding.

FACTS AND PROCEDURAL BACKGROUND

Frank Kenniasty (“Kenniasty”) was former counsel to Judith Deitz and William Moore d/b/a Techniarts Engineering (“Deitz and Moore”). Kenniasty and Deitz and Moore appealed to the Fifth District the trial court’s entry of final judgment in which Bionetics was awarded $89,025,778 in attorney’s fees and costs against each pursuant to section 57.105, Florida Statutes. Kenniasty, 10 So.3d at 1184. The Fifth District reversed, concluding that Bionetics failed to comply with the safe harbor provision. Id. at 1186. The district court described the facts underlying its decision in Kenniasty as follows:

This case arose as a result of Deitz and Moore having prevailed in earlier litigation. In that case, Bionetics had filed a complaint against Deitz and Moore in 1999, alleging an ownership interest in motion picture film-processing [“MOPIX”] equipment that Deitz and Moore had purchased from the Defense Reutilization and Management Office. In its complaint, Bionetics also sought sequestration of the MOPIX equipment. The court granted an order of sequestration, and the MOPIX equipment was sequestered in a temperature and humidity-controlled environment at Deitz’s & Moore’s facility. There, the MOPIX equipment remained substantially assembled.
Deitz and Moore sought relief from the sequestration, offering to post a bond “in lieu of sequestration of the MOPIX [equipment so that [they] could continue their business opportunities.” Bionetics rejected the offer, and the trial court denied the motion. Later, Deitz and Moore filed a motion to amend the order of sequestration because the lease had expired on their facility. The trial court ordered the Sheriff to move the MOPIX equipment to Bionetics’ facility for storage.
The case went to trial and Deitz and Moore prevailed as the legal owners of the MOPIX equipment, and the trial court vacated the order of sequestration. When Deitz and Moore entered Bionet-ics’ facility, they found it in a seriously degraded condition in a non-secure area with “a leaking roof, no air conditioning units, ... lack of ventilation, and extreme filth and dust.” The equipment was disassembled and scattered on the facility’s floor.
In 2001, Deitz and Moore, with Ken-niasty as counsel, filed a four count complaint against Bionetics, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics filed a motion to dismiss all counts. The trial court denied the motion as to count one, deferred in ruling as to count two, and granted the motion as to counts three and four with leave to amend.
Deitz and Moore filed an amended four count complaint on February 13, 2002, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics once again filed a motion to dismiss all counts. The trial court granted the motion with prejudice as to count two, and with leave to amend as to counts one, three and four.
On April 10, 2002, Deitz and Moore filed a second amended complaint, which consisted of six counts: malicious prosecution in count one, misappropriation of trade secrets in count two, tortious interference with business relations in count three, invasion of privacy in count four, trespass to property in count five, and violation of the Procurement Integrity Act (41 U.S.C. § 423) in count six. Again, Bionetics filed a motion to dismiss all counts. The trial court granted the motion with leave to amend counts one through five, and with prejudice as to count six.
Deitz and Moore filed a third amended complaint on September 17, 2002, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and tortious interference with business relations in count three. Bion-etics once more filed a motion to dismiss all counts. The trial court denied the motion as to count one but granted the motion as to counts two and three with leave to amend.
On November 12, 2002, Deitz and Moore filed a fourth amended complaint, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and defamation in count three. Bionetics filed a motion to dismiss counts two and three. The trial court denied the motion as to count two, but granted the motion as to count three with leave to amend.
On March 28, 2003, Bionetics filed a motion for award of attorney’s fees pursuant to section 57.105, Florida Statutes (2002). The trial court deferred consideration and ruling on the award of attorney’s fees until the conclusion of the trial. The case was tried without a jury and, at the close of Deitz’s & Moore’s case, Bionetics moved for involuntary dismissal, which the trial court granted. On July 21, 2004, Bionetics filed a second motion for an award of attorney’s fees pursuant to Section 57.105, Florida Statutes.

Id. at 1184-85. The trial court found that Bionetics was entitled to attorney’s fees pursuant to section 57.105 for the following three claims: (1) tortious interference with contract; (2) invasion of privacy; and (3) violation of the Procurement Integrity Act under 41 U.S.C. § 423. A successor judge found that Bionetics was entitled to $72,000 in attorney’s fees and $6,051.56 in costs. Accordingly, the lower court entered a final judgment awarding Bionetics $39,025.78 in attorney’s fees and costs against Kenniasty, individually, and $39,025.78 against Deitz, individually, Moore individually, and d/b/a Techniarts Engineering. Kenniasty and Deitz and Moore appealed the trial court’s entry of final judgment awarding Bionetics attorney’s fees and costs to the Fifth District.

On appeal, the Fifth District held that the trial court erred in awarding Bionetics attorney’s fees and costs pursuant to section 57.105 because Bionetics failed to comply with the safe harbor provision of that statute. Id. at 1185-86. The district court disagreed with Bionetics’ contention that “the safe harbor provision of section 57.105(4) represented a substantive rather than procedural statutory change and therefore could not be applied in this lawsuit.” Id. at 1186. The district court held in relevant part that “the safe harbor provision applies in situations like this case where the lawsuit was filed before [the effective date of] July 1, 2002, but the motion for attorney’s fees was not filed until after this date.” Id. Consequently, the district court concluded that the trial court erred in awarding Bionetics attorney’s fees. Id. Bionetics subsequently sought review in this Court, alleging express and direct conflict with the First District’s decision in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006).

In Walker, appellant Gabriel Walker filed a complaint against Cash Register Auto Insurance before the safe harbor provision became effective, seeking damages for racial prejudice on the authority of 42 U.S.C. § 1981 after his two-year-old son was denied access to the company’s restroom facility. Id. at 67. After the jury returned a verdict in favor of Cash Register, the company sought to recover attorney’s fees and costs pursuant to section 57.105(1), which the trial court awarded. Id. at 68. On appeal, Walker contended that an award of attorney’s fees under section 57.105 was improper because Cash Register failed to comply with the safe harbor provision contained in subsection (4) of the statute. Id. at 69. The First District noted that the safe harbor provision took effect on July 1, 2002, and observed: “The instant complaint was filed on June 11, 2002. The act of denying Walker and his son use of the restroom was alleged to have occurred on December 31, 2001. Thus, any application of subsection (4) to the instant case would be retroactive.” Id. at 71. The First District held that because the safe harbor provision was substantive in nature, the provision did not have retroactive application and thus could not be applied to Walker. Id. at 71-72.

ANALYSIS

Bionetics contends that the safe harbor provision contained in section 57.105(4) does not apply in the present case because the claims were originally filed prior to the effective date of the safe harbor provision. The question of whether a statute applies retroactively or prospectively is a pure question of law; thus, our standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo). We begin our analysis by examining the substantive or procedural nature of the safe harbor provision.

Nature of Safe Harbor Provision

Section 57.105 previously authorized an award of attorney’s fees when there was a complete absence of a justiciable issue of either law or fact raised by the losing party. See, e.g., Mullins v. Kennelly, 847 So.2d 1151, 1153-54 (Fla. 5th DCA 2003) (citing § 57.105, Fla. Stat. (1997)). The statute was amended in 1999 as part of the 1999 Tort Reform Act “to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available,” Yakavonis v. Dokphin Petroleum, Inc., 934 So.2d 615, 619 (Fla. 4th DCA 2006) (quoting Wendy’s of Ne. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003)), and to allow an award of attorney’s fees when a claim or defense, rather than the entire action, is frivolous. See Albritton v. Ferrera, 913 So.2d 5, 8 (Fla. 1st DCA 2005) (citing Mullins, 847 So.2d at 1154); see also ch. 99-225, § 4, at 1406-07, Laws of Fla. The statute was again amended to include a safe harbor provision, which took effect on July 1, 2002, while the present case was pending in trial court. See ch.2002-77, §§ 1-2, at 908-09, Laws of Florida.

One relevant inquiry when analyzing a change in statutory law is whether the amendment constitutes a substantive change or a procedural or remedial change in the law. See Smiley v. State, 966 So.2d 330, 334 (Fla.2007). This Court generally adheres to the following guidelines to determine whether a statute is procedural or substantive in nature:

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. On the other hand, practice and procedure “encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and corresponding defenses.

Massey v. David, 979 So.2d 931, 936-37 (Fla.2008) (emphasis omitted) (quoting Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 732 (Fla.1991)).

We have previously held that a statutory right to attorney’s fees constitutes a substantive right. See Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 878 (Fla.2010) (citing Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla.2001)). Further, district courts have concluded that statutory provisions which impose limitations on the right to recover attorney’s fees are substantive in nature. See, id. at 879 (citing Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437, 438 (Fla. 1st DCA 2004) (holding that a statutory amendment allowing an employer or carrier thirty rather than fourteen days to provide workers’ compensation benefits before being responsible for attorney’s fees was a substantive change in the statute)).

With regard to the specific nature of the safe harbor provision contained in section 57.105(4), the First District in Walker, the conflict case, explained:

Subsection (4) does more than require the giving of notice. It creates an opportunity to avoid the sanction of attorney’s fees by creating a safe period for withdrawal or amendment of meritless allegations and claims. The withdrawal or amendment of a claim, allegation or defense could substantively alter a case.

Walker, 946 So.2d at 71. We agree. Accordingly, we hold that the safe harbor provision contained in section 57.105(4) is substantive in nature. Having determined that the safe harbor provision is substantive, we turn now to consider the prospective or retroactive application of section 57.104(4).

Prospective or Retroactive Application of Section 57.105(1)

Substantive statutes are presumed to apply prospectively absent clear legislative intent to the contrary. See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999) (“The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.”) (citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996); Arrow Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla.1994)). When determining whether a statute should be retroactively applied, the statute at issue is subjected to the following inquiries:

The first inquiry is one of statutory construction: whether there is clear evidence of legislative intent to apply the statute [retroactively]. If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.

Id. at 499 (citations omitted). Further, to determine legislative intent as to retroac-tivity, this Court looks both to the purpose behind the enactment of the statute and the terms of the statute. Id. at 500.

As the First District recognized in Walker, the purpose of the safe harbor provision is “to give a pleader a last clear chance to withdraw a frivolous claim or defense ... or to reconsider a tactic taken primarily for the purpose of unreasonable delay.” Walker, 946 So.2d at 70 (citing Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004)). With regard to the language of the safe harbor provision, there is no evidence of a legislative intent to rebut the presumption against retroactivity. Both the statute and its enacting legislation are silent on the forward or backward reach of the safe harbor provision. Tellingly, the enacting legislation simply provides that “[t]his act shall take effect July 1, 2002.” Ch.2002-77, § 2, at 909, Laws of Fla. Due to the lack of evidence of legislative intent to apply the statute retroactively, we conclude that the safe harbor provision applies prospectively. Consequently, we need not consider the second interrelated inquiry as to whether retroactive application is constitutionally permissible. See Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So.2d 438, 441 (Fla. 2001) (citing Singletary v. State, 322 So.2d 551, 552 (Fla.1975)).

Although we conclude that the safe harbor provision applies prospectively, this conclusion does not completely resolve the issue before us. We thus proceed to consider whether the safe harbor provision applies to cases such as Kenniasty where the frivolous claims were originally filed before the provision became effective, but the motion seeking attorney’s fees pursuant to section 57.105 was filed after the provision took effect.

The Fifth District in Kenniasty held that “[although Deitz and Moore filed suit prior to the effective date of section 57.105(4), this safe harbor provision applied because Bionetics filed its motion for attorney’s fees on March 28, 2008, well after its July 1, 2002, effective date.” Kenniasty, 10 So.3d at 1186. In contrast, the First District in Walker held that the safe harbor provision did not apply retroactively to a case where the complaint was filed and the legal harm occurred before the effective date of the safe harbor provision. Walker, 946 So.2d at 71-72. Thus, whereas the Fifth District in Kenniasty focused on the date the motion for attorney’s fees was filed to determine the applicability of the safe harbor provision, the First District in Walker focused on the time the legal harm occurred and the date the underlying suit was filed to determine the prospective application of the safe harbor provision.

We conclude that Walker espouses the correct view. In this case, the claims for tortious interference with business relations, invasion of privacy, and violation of the federal Procurement Integrity Act were originally filed before the safe harbor provision became effective. Because the safe harbor provision is substantive and does not apply retroactively, we hold that the safe harbor provision cannot apply in this case. Therefore, the Fifth District erred in concluding that the safe harbor provision applied because Bionetics’ motion for attorney’s fees was filed after the safe harbor provision took effect. Having resolved the conflict presented before this Court, we decline to address the remaining issues raised by both parties in this case.

CONCLUSION

Based on the foregoing, we quash the decision of the Fifth District in Kenniasty v. Bionetics Corp., 10 So.3d 1183 (Fla. 5th DCA 2009), to the extent that it is inconsistent with our decision, and we approve the decision of the First District in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006), to the extent it is consistent with our analysis and holding. Upon remand of this proceeding, the Fifth District may consider and decide issues that were raised but not reached by the district court or this Court.

It is so ordered.

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

      . The court order on entitlement to attorney’s fees refers to this claim as tortious interference with contract. However, Deitz and Moore actually pled a claim for tortious interference with business relations.

      . The decision in Kenniasty expressly held that Bionetics failed to give timely notice under section 57.105(4) as to the counts for invasion of privacy and violation of the federal Procurement Integrity Act. Kenniasty, 10 So.3d at 1186. After considering whether the safe harbor provision applied to the case, the court proceeded to address the parties’ various contentions with regard to the claim for tortious interference with business relations. Although the district court did not expressly hold that Bionetics failed to comply with the safe harbor provision as it relates to the claim for tortious interference with business relations, we read the decision to hold that Bion-etics failed to comply with the provision on all three claims. We note that apart from the applicability of the safe harbor provision to the claims in this case, we do not disturb the district court’s other holdings with regard to the claim for tortious interference with business relations.

      . The statute was amended most recently effective July 1, 2010, to include exceptions to monetary sanctions. See ch.2010-129, §§ 1-2, at 994-95, Laws of Fla.


author: PER CURIAM. ALTENBERND, Judge,

text:
    In re COMMITMENT OF Larry PHILLIPS. Larry Phillips, Petitioner, v. State of Florida, Respondent.
    No. 2D10-240.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    Rehearing Denied Feb. 9, 2011.

      Kathleen A. Smith, Public Defender, and Richard R. Donnelly, Assistant Public Defender, Cape Coral, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Larry Phillips, a detained person under the Involuntary Civil Commitment of Sexually Violent Predators Act (the Act) who is currently awaiting trial on the commitment petition, seeks a writ of prohibition to prevent the circuit court of Collier County from conducting further proceedings on the commitment petition. He asserts that the circuit court does not have jurisdiction to adjudicate the commitment petition filed under the Act because he was not in lawful custody at the time that proceedings under the Act were commenced. We agree that Phillips is entitled to relief on this basis.

The facts of the case are not in dispute. In February 1990 Phillips was arrested on a fugitive warrant in Georgia and extradited to Collier County where he was charged with three counts of committing a lewd and lascivious assault. After posting bond in Florida, Phillips was returned to Georgia for prosecution of a separate offense. In July 1990 a Georgia court sentenced Phillips to three years in prison followed by seventeen years of probation for that offense. Phillips was paroled in March 1992 and returned to Florida to resolve the Collier County case.

In April 1992 the Collier County circuit court sentenced Phillips to two years in prison followed by ten years of probation. The court awarded Phillips two years of credit for the time he had served in Georgia prior to his return to Florida. This effectively erased the two-year prison sentence, and Phillips was processed in and out of the Florida Department of Corrections (DOC) on the same day that he was sentenced. Phillips thereafter returned to Georgia to serve both his Georgia and Florida probationary terms.

Less than two years later, Phillips violated both his Georgia probation and his Florida probation by committing a new law offense in Georgia. A Georgia court revoked his probation and sentenced him to prison. In January 2004 Phillips was paroled from prison in Georgia and extradited to Florida to face the violation of probation charge in Collier County. Phillips admitted to violating his Florida probation, and the court sentenced him to 5.5 years in prison with 177 days of jail credit. Less than a year later, Phillips filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 8.800(a). Phillips requested that a Florida postcon-viction court award him credit against his prison sentence for the two years of credit for time served in Georgia that the Florida court had awarded in 1992. In September 2005 the postconviction court granted the motion and ordered the DOC to award Phillips the original jail and prison credit in addition to the credit for the 177 days he spent in custody prior to the revocation of his probation.

On December 6, 2005, Phillips was released from the DOC and was transferred to the Florida Civil Commitment Center pursuant to section 394.9135(1), Florida Statutes (2005). The Department of Children and Family Services placed a seventy-two hour hold on Phillips and began its evaluation to determine whether he met the criteria for commitment as a sexually violent predator under the Act. The multidisciplinary team timely recommended civil commitment to the state attorney, who filed a commitment petition.

In December 2008 the Florida Supreme Court issued its decision in Lañmore v. State, 2 So.3d 101, 105 (Fla.2008), in which it held a person must be in lawful custody when commitment proceedings are initiated for the circuit court to have jurisdiction to adjudicate a commitment petition under the Act. In June 2009 Phillips, who was still in custody but had not been to trial, filed a motion to dismiss the commitment petition in the circuit court. Phillips argued that he was not in lawful custody at the time commitment proceedings were initiated on December 6, 2005, because his sentence had expired on August 31, 2005, based on the postconviction court’s determination of entitlement to two years of prison credit against Phillips’ sentence of 5.5 years. Phillips relied on an affidavit executed by a DOC administrator which stated that, with the application of the prior prison and jail credit, Phillips’ sentence expired on August 31, 2005. The DOC included the award of 420 days of basic gain time and 234 days of incentive gain time in making this calculation.

The circuit court denied the motion to dismiss based on its determination that Phillips was in lawful custody when commitment proceedings were initiated because “[t]he time period from August 31, 2005 to December 6, 2005 was well within the legal term of [Phillips’] sentence of 5 1/2 years.” Phillips then filed this petition for writ of prohibition contending that because his sentence legally expired on August 31, 2005, he was not in lawful custody when commitment proceedings were initiated in December 2005. Phillips contends that, under Larimore, the circuit court is without jurisdiction to adjudicate the commitment petition.

Larimore involved a guilty plea to lewd and lascivious acts on a child in two separate cases in 1991. 2 So.3d at 104. Lari-more was sentenced to fifteen years in prison in one case followed by five years of probation in the second case. He was released from prison in 1998 due to a gain time award, and he began serving his probation. The court revoked Larimore’s probation in February 2000 and sentenced him to five years in prison.

In August 2002 the First District Court of Appeal determined that Larimore was entitled, pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), to credit against the five-year prison sentence for the time served on the fifteen-year sentence imposed in the first case, including actual prison time and gain time. Larimore, 2 So.3d at 104. The award of credit would have effectively erased the five-year sentence imposed for the violation of probation, but the DOC forfeited 2830 days of gain time Larimore had earned on his fifteen-year prison sentence. Id.

In November 2004, while Larimore was in prison, the State filed a petition for involuntary civil commitment pursuant to the Act. Less than one month later, the First District held that Larimore was entitled to immediate release from custody because the DOC’s forfeiture of his gain time was unauthorized. Id. (citing Larimore v. Fla. Dep’t of Corr., 910 So.2d 847 (Fla. 1st DCA 2004)). Larimore then filed a motion to dismiss the commitment petition on the ground that he was not in lawful custody on the effective date of the Act. After the circuit court denied his motion, he filed a petition for writ of prohibition in the First District to prevent further proceedings against him under the Act. The First District denied the petition. 2 So.3d at 104 (citing Larimore v. State, 917 So.2d 354, 355 (Fla. 1st DCA 2005)).

On review of the denial of Larimore’s petition for writ of prohibition, the supreme court held that Larimore was entitled to release because he “was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him.” Id. at 117. The court noted that it had previously construed the term “custody” to mean “lawful custody” in State v. Atkinson, 831 So.2d 172, 174 (Fla. 2002), in which it held that the Act was not applicable to individuals who were not in lawful custody on its effective date. Larimore, 2 So.3d at 115. The court explained that

interpreting the Jimmy Ryce Act as not requiring lawful custody for individuals who had been incarcerated at some point after the effective date of the Act but are not in lawful custody when commitment proceedings are initiated would be contrary not only to the overall intent of the Act but “would be contrary to the basic tenets of fairness and due process.”

Id. (quoting Atkinson, 831 So.2d at 174).

This court recently applied Larimore under circumstances similar to those in this case. See Bishop v. Sheldon, 68 So.3d 259 (Fla. 2d DCA 2010). In Bishop the petitioner’s original sentence had been imposed pursuant to sentencing guidelines which were subsequently declared illegal by the supreme court. Id. at 952. The petitioner’s sentence was corrected by a postconviction court, and Bishop was entitled to immediate release because his sentence had expired. However, the petitioner was not released, and the State filed a petition for commitment under the Act. The petitioner sought a writ of habeas corpus in this court arguing that, under Larimore, the Act did not apply to him because he was not in lawful custody at the time commitment proceedings were initiated. Id. at 952-53. This court agreed that Larimore applied but transferred the case to the circuit court to resolve factual disputes over whether the petitioner was in lawful custody when commitment proceedings were initiated. Id. at 955.

This case requires a similar legal analysis but does not involve any disputed facts. Under Larimore, Phillips cannot be committed pursuant to the Act if he was not in lawful custody when the State initiated commitment proceedings. Phillips’ prison sentence of 5.5 years for the violation of his probation was illegal because the court failed to award prior jail and prison credit. See Haines v. State, 851 So.2d 831, 832 (Fla. 1st DCA 2003). After the postconviction court determined that the prior prison and jail credits should be applied to correct the illegal sentence, the DOC recalculated Phillips’ sentence and found that it had expired as of August 31, 2005. Thus, Phillips was not in lawful custody when the State initiated commitment proceedings in December 2005. Cf. Atkinson, 831 So.2d at 174 (holding that defendant who was resentenced because his prior sentence had been imposed pursuant to unconstitutional sentencing guidelines was not in lawful custody when his sentence expired).

We recognize that section 394.9135 provides a procedure for the DOC to initiate commitment proceedings under the Act when the release of an inmate convicted of a qualifying offense “becomes immediate for any reason.” However, this “‘safety valve’” does not apply because lawful custody is required before the State may initiate commitment proceedings. Larimore, 2 So.3d at 105, 117 (quoting Gordon v. Regier, 839 So.2d 715, 719 (Fla. 2d DCA 2003)). Thus, even though Phillips’ release became immediate upon his resentencing by the postconviction court, section 394.9135 was inapplicable. Id.

In its response to Phillips’ petition the State argues that Phillips’ reliance on Lar-imore is misplaced based on a footnote in Larimore in which the court stated as follows:

In this case, Larimore’s entire resen-tencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason. That issue is not before us.

2 So.3d at 117 n. 8. The State claims that Phillips was in lawful custody because his sentence for the violation of probation was legal except that the gain time award was “incorrect.” This argument is specious because the petitioner in Larimore was entitled to immediate release due to a misapplication of gain time. See also Madison v. State, 27 So.3d 61, 63 (Fla. 1st DCA 2.009) (relying on Larimore to remand for the circuit court to consider gain time and other credits in determining whether Madison was in lawful custody at the time commitment proceedings were initiated).

The State alternatively argues that incentive gain time should not be considered in determining whether Phillips was in lawful custody at the time commitment proceedings were initiated. The .State contends that if only basic gain time had been awarded, then Phillips would have been in lawful custody when commitment proceedings were commenced. However, the State has pointed to no authority to support its contention that basic and incentive gain time should be treated differently-

Under section 944.275(4)(b), Florida Statutes (1989), incentive gain time “shall be credited and applied monthly.” In September 2005, when the post-conviction court ordered that Phillips receive credit against the sentence imposed upon revocation of probation for the time previously served in prison, he had already been awarded incentive gain time. Both basic and incentive gain time become vested rights once awarded, subject to all other applicable statutory conditions. Waldrup v. Dugger, 562 So.2d 687, 694 (Fla. 1990); Davis v. Singletary, 659 So.2d 1126, 1127 n. 3 (Fla. 2d DCA 1995). Thus, the incentive gain time already earned and calculated is properly included in determining whether Phillips was lawfully in custody at the time of the commencement of commitment proceedings.

We appreciate the dissent’s ac-knowledgement of our attempt “to remain obedient to the supreme court’s precedent in Larimore and Atkinson.” However, we do not share the dissent’s view that the facts of this case may be distinguished from that supreme court precedent. First, there is no evidence in our record that Phillips intentionally delayed action in order to deprive the Department of Children and Family Services of jurisdiction. In fact, as the dissent recognizes, Phillips appropriately filed a motion to correct his sentence months before his legal sentence expired, but the postconviction court did not resolve the motion for nearly six months. Second, we are unable to agree •with the dissent’s position that Larimore and Atkinson should not apply because the circuit judge, Phillips’ attorney, and the prosecutor were not conversant with the applicable sentencing law. Any such misunderstanding or confusion does not turn an illegal sentence into a legal sentence. Finally, the dissent suggests that defense counsel “is well advised to assure there is an unpreserved error in jail or prison credit” so that the defendant can delay correction of the error until it is too late to initiate commitment proceedings. The documents before us do not suggest this occurred in the present case. Moreover, while defense attorneys must zealously represent their clients, they must also fulfill their duty of candor towards the courts and must avoid conduct that undermines the integrity of the process. See R. Regulating Fla. Bar 4-3.3 cmt. Ultimately, though, it is the responsibility of judges and prosecutors to ensure that legal sentences are imposed and that errors are timely corrected.

Based on the gain time awarded and the application of prior prison credit in this case, Phillips’ custodial sentence legally expired on August 31, 2005, well before the State initiated commitment proceedings in December 2005. Because Phillips was not in lawful custody at the time that proceedings under the Act were commenced, the circuit court does not have jurisdiction to adjudicate the commitment petition filed against Phillips under the Act. We therefore grant Phillips’s petition for writ of prohibition and dismiss the State’s commitment petition with prejudice. Phillips shall be immediately released from any custody or detention that has been imposed as a result of the commitment proceedings.

Because our ruling may preclude the civil commitment of persons who otherwise qualify as sexually violent predators, we certify the following question to the supreme court as one of great public importance:

DOES THE STATE HAVE JURISDICTION TO INITIATE CIVIL COMMITMENT PROCEEDINGS UNDER THE INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT AGAINST AN INMATE WHO IS ENTITLED TO IMMEDIATE RELEASE BASED ON A CORRECTED AWARD OF GAIN TIME?
Petition granted.

SILBERMAN and CRENSHAW, JJ., Concur.

ALTENBERND, Judge, Concurs in part and dissents in part with opinion.

ALTENBERND, Judge,

Concurring in part and dissenting in part.

I concur in the certified question. I also appreciate the court’s effort in this opinion to remain obedient to the supreme court’s precedent in Larimore and Atkinson. Nevertheless, I am inclined to believe that this case is distinguishable from Larimore or that the supreme court should utilize the certified question in this case to narrow the effect of these opinions. Mr. Phillips should not be allowed to deprive the Department of Children and Family Services of jurisdiction over him by his own decision to forego an appeal and to delay a postconviction motion so that, on recalculation, his sentence expired before the un-preserved error was corrected.

I am not entirely confident that the appendix in this case is an adequate record to authorize a grant of relief. Although the parties agree that the facts are not in dispute, the record does not contain Mr. Phillips’ judgments and sentences. The sentencing transcript from the hearing on June 10, 2004, indicates that the maximum guidelines sentence in light of Mr. Phillips’ scoresheet was 5.5 years’ incarceration, but we do not have that scoresheet. I would, at a minimum, feel more confident in our analysis if those documents were in our record.

Reduced to its simplest terms, Mr. Phillips was sentenced on a violation of probation in Collier County on June 10, 2004. The court imposed the maximum sentence under the guidelines of 5.5 years’ incarceration. The transcript of that hearing reflects that credit for time served was not entirely resolved at the hearing. Apparently, the written sentence awarded 177 days’ jail credit. No one objected to these procedures at the hearing and, apparently, no one appealed this new sentence.

Mr. Phillips’ crimes were committed in 1989. By the time he was sentenced in 2004, no one in the courtroom seems to have been conversant with the sentencing law that applied in 1989. Mr. Phillips was entitled to Tripp credit for the two years he served in Georgia, and, apparently, that credit had been awarded to him in a 1992 sentence that is not in our record. See Tripp v. State, 622 So.2d 941 (Fla.1993).

If anyone in the courtroom had been more conversant with the earlier sentencing law, Mr. Phillips would have received the Tripp credit at that time. As a result, everyone would have understood that his sentence in June 2004 would reach its end by August 2005. If Mr. Phillips had appealed his sentence in 2004, it is likely that his appellate lawyer would have corrected this error by filing a motion under Florida Rule of Criminal Procedure 3.800(b) to correct the mistake, and it would have been corrected before August 2005. Under either of these hypothetical, Mr. Phillips would have been transferred to the Department of Children and Family Services in a timely and proper process that would not require this court to issue a writ of prohibition.

But Mr. Phillips waited until April 2005 to file a motion to correct a sentencing error addressing the Tripp credit. The circuit court entered an order granting that motion on September 15, 2005. The order explained that Mr. Phillips needed to apply for this credit from the Department of Corrections. Mr. Phillips then further delayed this process by filing a motion for rehearing that is not in our record. The trial court denied that motion in November 2005 and Mr. Phillips was released by the Department of Corrections and transferred to the Department of Children and Family Services in early December 2005.

I do not believe that the sentence imposed without objection in June 2004 was void or somehow implicitly contained two years of undisclosed jail or prison credit. Although I have not seen this sentence, I have no reason to believe that it was not a facially legal sentence.

For these purposes, it seems to me that Mr. Phillips was lawfully held by the Department of Corrections until the additional prison or jail credit for his time in Georgia was added to his sentence. Mr. Phillips should not be allowed to deprive the Department of Children and Family Services of jurisdiction over him by his own decision to forego an appeal and to delay a postconviction motion so that, on recalculation, his sentence expired before the unpreserved error was corrected.

Our interpretation of Lanmore and Atkinson may have a perverse effect on sentencing in cases where a Jimmy Ryce proceeding is a possibility. Because a motion under rule 3.800(a) can be filed at any time and because, rightly or wrongly, we essentially permit de novo review of jail and prison credit under this rule, a defendant’s attorney is well advised to assure there is an unpreserved error in jail or prison credit when a client may be subject to civil detention. Once the error is rendered in the sentence, the defendant need only wait until the final portion of his sentence to file a motion under rule 3.800(a) to guarantee that the error will be corrected at a point that will divest the Department of Children and Family Services from jurisdiction. I see no reason why this outcome should be required as a matter of law.

      . The Involuntary Civil Commitment of Sexually Violent Predators Act, section 394.910-931, Florida Statutes (2005), is also known as the Jimmy Ryce Act.

      . A petition for writ of prohibition is a proper vehicle to challenge the court’s lack of subject matter jurisdiction. See Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62, 63 (Fla. 5th DCA 2009); Lee v. Campion, 823 So.2d 159, 159 (Fla. 4th DCA 2002); see also Larimore v. State, 2 So.3d 101, 117 (Fla.2008) (quashing decision denying petition for writ of prohibition sought to request dismissal of civil commitment petition based on lack of jurisdiction).

      . Section 394.9135(1), Florida Statutes (2005), provides as follows:
      If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.

      . Section 394.9135(2) requires the multidisciplinary team to determine whether the person qualifies as a sexually violent predator within seventy-two hours. If the multidisciplinary team determines that the person qualifies as a sexually violent predator, it must provide the state attorney with a written assessment and recommendation within the seventy-two-hour time period or within the next working day if the seventy-two-hour time period ends on a weekend or holiday.

      .For purposes of the motion to dismiss, the parties stipulated to the accuracy of this affidavit.

      . A prisoner's ability to earn gain time is based on the statutes in effect at the time of the offense. See Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (holding that the ex post facto clause applied to changes in gain time statutes). Phillips committed the underlying offenses in December 1989.

      . Although I do not agree that prohibition should be granted in this case on the ground alleged, it is noteworthy that Mr. Phillips has a pending civil commitment proceeding five years after he was released from prison. I must question the constitutionality of a procedure that holds a person in civil detention without a final determination for years when the statutes contemplate a trial within thirty days.

      . Admittedly, Mr. Phillips may have hoped that the trial court would resolve his motion prior to the end of August, but the resources of our trial courts are overwhelmed by such motions and this delay is not an unusual delay. Mr. Phillips' motion did not suggest that timing was critical or that his sentence was about to expire if his claim was valid.


author: PER CURIAM.

text:
    Roger W. GRIFFIS, Appellant, v. STATE, DEPARTMENT OF BUSINESS and PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 1D10-5624.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Roger W. Griffis, pro se, Appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business and Professional Regulation, Tallahassee, for Ap-pellee.
   PER CURIAM.

Roger W. Griffis appeals an order revoking his general contractor’s license and imposing other sanctions. He argues in his initial brief that the agency failed to properly serve its administrative complaint, and in a motion to dismiss and remand the matter for a hearing, the agency acknowledges that the record does not conclusively refute this claim. In light of the representations in the agency’s motion, the final order being appealed herein is REVERSED, and the matter is REMANDED to the agency for further proceedings.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


author: DAVIS, Judge.

text:
    NOVASTAR MORTGAGE, INC., Appellant, v. Shedrick Arbonnetta BUCKNOR, a/k/a Shedrick A. Bucknor, a/k/a Shedrick Avonnetta Buchnor; Unknown Spouse of Shedrick Arbonnetta Bucknor, a/k/a Shedrick A. Bucknor, a/k/a Shedrick Avonnetta Buchnor; Unknown Person(s) In Possession of Subject Property; Suncoast Schools Federal Credit Union; South Pointe Homeowners Association, Inc., Appellees.
    No. 2D10-4545.
    District Court of Appeal of Florida, Second District.
    July 22, 2011.
    James H. Wyman of Hinshaw & Culbertson, LLP, Fort Lauderdale, for Appellant.
    Pattie W. Halloran of Gibbons, Neuman, Bello, Segall, Allen & Halloran, P.A., Tampa, for Appellee Shedrick A. Bucknor.
    No appearance for remaining Appellees.
   DAVIS, Judge.

Novastar Mortgage, Inc., challenges the trial court’s order granting Shedrick Ar-bonnetta Bucknor’s motion to set aside and vacate the final judgment of foreclosure and to void the foreclosure sale, the certificate of sale, and the certificate of title. Because the trial court granted Bucknor’s motion without first conducting an eviden-tiary hearing, we reverse.

Novastar moved to foreclose the note and mortgage it held for Bucknor’s property, which had been damaged by a sinkhole. As the foreclosure was proceeding, Bucknor was also in negotiations with her insurance company to recover sinkhole-related damages. After Novastar moved for summary judgment of foreclosure but before the final hearing on the matter, an agreement concerning the settlement of the insurance claim was reached. In her motion to set aside, Bucknor alleged that she contacted a representative for Novas-tar and discussed using the insurance check to bring the property out of foreclosure. According to Bucknor, she was told that the scheduled hearing on the motion for summary judgment would be canceled and that she did not need to attend. The hearing, however, was not canceled, and a summary judgment of foreclosure was entered in Bucknor’s absence.

Bucknor then moved to set aside the final judgment of foreclosure, alleging pursuant to Florida Rule of Civil Procedure 1.540(b)(3) that her reliance on misrepresentations by Novastar led her to believe that the insurance check would bring the property out of foreclosure and that the hearing would be canceled. The trial court held a hearing on Bucknor’s rule 1.540(b) motion but took no sworn testimony or evidence at the hearing. Relying solely on the written submissions of the parties and the arguments of counsel, the trial court granted the motion and set aside the final judgment of foreclosure based on Novastar’s bad faith.

Although Bucknor’s allegations against Novastar may support the granting of a rule 1.540(b)(3) motion, the trial court erred in basing such a determination on the conflicting affidavits of the parties instead of holding an evidentiary hearing on the motion. See Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (“Of course, ‘[njeither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.’ ” (alteration in original) (quoting Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991))); Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984) (“Appellant has ... made allegations of fraud and misrepresentation on the part of appellee as an inducement to her consent to the terms of the final judgment.... The credibility of appellant’s allegations should only be determined by the trial court after an eviden-tiary hearing thereon.”).

We note that although the record currently before this court does not indicate whether Novastar even requested an evi-dentiary hearing, its failure to do so would have no impact on our disposition here. See S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (“In circumstances such as th[ese] where the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”).

Accordingly, we reverse the order setting aside the final summary judgment of foreclosure and remand for the trial court to hold an evidentiary hearing prior to making its findings of fact regarding the allegations. We note that nothing in this opinion should be construed as a determination on the merits of the claims raised in Bucknor’s rule 1.540(b) motion.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.


text:
    George H. DEAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3642.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Rehearing Denied Sept. 27, 2011.
    George H. Dean, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Larry James TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2717.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.
    Rehearing Denied Sept. 21, 2011.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Larry Tyler was convicted of failing to register as a sexual offender because he did not obtain an updated driver’s license after changing his residence, as required by section 943.0435, Florida Statutes (2007). Tyler contended below and argues here that the statute is unconstitutional. In the absence of evidence demonstrating its application to Tyler’s particular circumstances, we affirm the judgment and sentence on the ground that the statute is facially valid. We must leave for another day a decision on the constitutionality of the statute as applied to a sexual offender who cannot afford to pay.

Florida law imposes on convicted sexual offenders a number of ongoing obligations to report and register their whereabouts. For example, a sexual offender is required as a matter of course to report in person to the local sheriffs office, either twice a year or more often depending on the nature of the underlying conviction. § 944.607(13), Fla. Stat. (2007). In addition to the regular reporting requirement, each time the offender permanently or temporarily changes his residence, he must within forty-eight hours report in person to the sheriffs office to register the new address, be photographed, have fingerprints taken, and furnish various items of information specified in the statute. § 943.0435(2). Then, within forty-eight hours after reporting to the sheriffs office, the offender must report in person to the driver’s license office of the Department of Highway Safety and Motor Vehicles to secure or renew a driver’s license or identification card bearing the new address. § 943.0435(3).

The statute expressly requires the offender to “[p]ay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver’s license or identification card as required by this section.” § 943.0435(3)(b). At the time of the offense, the Department charged $10 for a replacement driver’s license or identification card reflecting a change of address. §§ 322.17(2), 322.051(2)(a), Fla. Stat. (2007). The Florida statutes contain no provision for waivers or discounts to indigents. Failure to comply with the reporting and registration requirements in chapter 943 is a third-degree felony. § 943.0435(9).

For background on Tyler’s case, we have gleaned the following facts from the probable case affidavit. According to a detective with the Lee County Sheriffs Office, Tyler was convicted of an unspecified offense in Texas in 1993, and this offense qualified him as a sexual offender in Florida. Tyler’s address in Fort Myers was listed with the Florida Department of Law Enforcement, and the detective visited Tyler in late September 2007 to verify his presence. At that time, the detective told Tyler to update his driver’s license, which still reflected his previous address in Cape Coral. Tyler responded that he was short on money but would have the license updated in a few days. About two weeks later, the detective again made contact with Tyler. Tyler had not updated his license but advised that he was about to move to a new residence and would update his license with the new address. Within a few days, the Lee County Sheriffs Office had Tyler’s new address in Fort Myers, and the detective visited Tyler at this address in November. But Tyler had never updated his license, and he was arrested and charged with violating section 943.0435 by failing to obtain a new license after changing his residence.

Tyler filed a pretrial motion seeking a declaration that the criminal statute was unconstitutional as applied to an indigent who could not afford to pay the associated cost. The motion asserted that the statute violates the Due Process Clause and the prohibition against imprisonment for debt, citing article I, sections 9 and 11, Florida Constitution, and the Fourteenth Amendment to the United States Constitution.

At the motion hearing, neither party presented evidence. Tyler’s attorney simply relied on Tyler’s status as indigent for purposes of qualifying for the services of a public defender. The prosecutor simply argued that the statute’s constitutionality had been consistently upheld. The court denied Tyler’s motion to declare the statute unconstitutional without elaboration. Subsequently, Tyler changed his plea to no contest and reserved the right to appeal the dispositive constitutional issue. Although it appears that Tyler’s address was at all times known to the Lee County Sheriffs Office, no evidence or argument was submitted for a downward departure sentence. Tyler was sentenced to 31.6 months in prison.

It is firmly established that a person cannot be imprisoned solely because of his indigence. V.H. v. State, 498 So.2d 1011, 1011 (Fla. 2d DCA 1986) (citing Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971)); see also State v. Beasley, 580 So.2d 139, 142 (Fla.1991) (holding that assessment of defendant’s ability to pay criminal costs was necessary only when government sought to enforce collection and defendant could suffer loss of liberty or property; “[i]f that loss were because Beasley simply was too poor to pay, through no fault of his own, his due process rights would be violated”). In analogous circumstances, the United States Supreme Court has held that the federal Constitution forbids statutory schemes that convert criminal fines to imprisonment solely on the basis of the defendants’ inability to pay the fines. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (holding that such a scheme violated the Equal Protection Clause of the Fourteenth Amendment); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (same).

Similarly, a probationer cannot be imprisoned for failing to pay court-imposed restitution without the court’s first determining that the probationer had the ability to pay but willfully refused to do so, even if the probationer previously agreed to waive a future determination of his ability to pay. Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994). In reaching this conclusion, the Florida Supreme Court approved the the Third District’s reasoning that “such a scheme, with no determination of the defendant’s ability to pay before being incarcerated for failing to make restitution, ‘subverts the requirements of due process and equal protection and the prohibition of imprisonment for debt.’ ” 630 So.2d at 1091 (quoting Hamrick v. State, 519 So.2d 81, 82 (Fla. 3d DCA 1988)).

Here, however, Tyler introduced no evidence of his inability to pay. As defense counsel pointed out, Tyler qualified for the services of a public defender. But proving that he could not afford an attorney fell far short of proving that he could not afford to update his driver’s license. “The constitutional application of a statute to a particular set of facts ... must be raised at the trial level.” Trushin v. State, 425 So.2d 1126, 1129-30 (Fla.1982).

Without evidence of facts sufficient to decide Tyler’s as-applied challenge, we are left to consider the facial validity of the statute. To find the statute facially unconstitutional, we would have to conclude that “no set of circumstances exists under which the statute would be valid.” Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005). Tyler argues that, when the statute results in imprisonment because a sexual offender could not pay for an updated license or identification card, the statute violates the constitutional prohibition against imprisonment for debt. In Turner v. State ex rel. Gruver, 168 So.2d 192 (Fla. 3d DCA 1964), the appellate court found unconstitutional a local ordinance that imposed a criminal penalty for nonpayment of a garbage collection charge. “Statutes or ordinances, designed as debt collecting devices under the guise of penal laws, contravene the constitutional prohibition against imprisonment for debt.” Id. at 194 (quoting 16 C.J.S. Constitutional Law § 204(4)). In this case, chapter 322 requires the Department of Highway Safety and Motor Vehicles to charge for issuing a replacement driver’s license or identification card reflecting a change of address. §§ 322.17(2), 322.051(2)(a). No law requires a typical resident, or even a typical felon, to obtain a driver’s license or identification card. On the other hand, sexual offenders such as Tyler are legally compelled to obtain this documentation every time they change their residences, and they are expressly required to pay for it. Thus, the case appears similar to the situation in Turner, in which simple nonpayment subjects a person to a potential imprisonment.

Whether analyzed under this provision or under state and federal due process and equal protection grounds, however, the statute’s criminal penalty would present a constitutional violation only for defendants who have made reasonable efforts to pay but cannot do so through no fault of their own. As the United States Supreme Court explained when invalidating a statute that provided for an automatic probation revocation due to a defendant’s failure to pay a fine:

If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. See ALI, Model Penal Code § 302.2(1) (Proposed Official Draft 1962). Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available. This lack of fault provides a “substantial rea-so[n] which justified] or mitigate[s] the violation and make[s] revocation inappropriate.” Gagnon v. Scarpelli, supra, 411 U.S. [778], at 790, 93 S.Ct. [1756], at 1764, 36 L.Ed.2d 656 [ (1973) ]. Cf Zablocki v. Redhail, 434 U.S. 374, 400, 98 S.Ct. 673, 688, 54 L.Ed.2d 618 (1978) (POWELL, J., concurring) (distinguishing, under both due process and equal protection analyses, persons who shirk their moral and legal obligation to pay child support from those wholly unable to pay).

Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (footnotes omitted). In this case, there was no showing that Tyler had made an effort to update his license but was unable to do so because he could not pay the associated fee despite his reasonable efforts.

Although we affirm Tyler’s conviction and sentence, we disagree with the State’s assertion, below and on appeal, that his constitutional challenge has already been resolved against him by Florida’s appellate courts. None of the cases cited by the State, either in the circuit court or here, has upheld the statute against a constitutional challenge premised on the defendant’s indigence. See State v. Giorgetti, 868 So.2d 512 (Fla.2004) (construing sex offender registration statute to require proof of offender’s actual or probable knowledge of duty to register in order to meet requirements of due process); Newell v. State, 875 So.2d 747 (Fla. 2d DCA 2004) (rejecting procedural and substantive due process claims); Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003) (rejecting procedural due process and ex post facto challenges to constitutionality of statute); Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003) (rejecting generally constitutional challenge based on procedural due process and privacy); Johnson v. State, 795 So.2d 82 (Fla. 5th DCA 2000); Rickman v. State, 714 So.2d 538 (Fla. 5th DCA 1998); Doe v. Moore, 410 F.3d 1337 (11th Cir.2005). Neither have we found such a case.

Affirmed.

YILLANTI and KHOUZAM, JJ., Concur.

      . The Department now charges $25. § 322.21(l)(e), (f), Fla. Stat. (2010).

      . "No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.” Art. I, § 9, Fla. Const. “No person shall be imprisoned for debt, except in cases of fraud.” Art. I, § 11, Fla. Const.

      . "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Amend. XIV, § 1, U.S. Const.

        .See, e.g., § 921.0026(2)(c), Fla. Stat. (2007) (allowing downward departure when defendant’s capacity to conform his conduct to the law’s requirements was substantially impaired).