author: JOINER, Judge.

text:
    Curtis Maurice SANDERS v. STATE of Alabama.
    CR-10-1091.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 8, 2013.

      Amber Lynn Ladner, Mountain Brook, for appellant.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   JOINER, Judge.

Curtis Maurice Sanders pleaded guilty to third-degree burglary. See § 13A-7-7(a), Ala.Code 1975. The circuit court sentenced Sanders to two years’ imprisonment but suspended that sentence and placed Sanders on probation. We reverse and render a judgment for Sanders.

Facts and Procedural History

On the morning of April 1, 2010, law-enforcement officers saw Sanders carrying metal and a screwdriver in an unoccupied house located at 8413 5th Avenue North in Birmingham. The officers arrested Sanders, and Sanders was ultimately indicted for one count of third-degree burglary. See § 13A-7-7(a), Ala.Code 1975.

Sanders filed a motion to dismiss the indictment in which he asserted that he could not be guilty of third-degree burglary because, he argued, the structure he had entered was not a “building” as that term is used in § 13A-7-7(a), Ala.Code 1975. Sanders presented evidence at a hearing on the motion to dismiss, and the State stipulated to the admission of that evidence. Following the hearing, the circuit court denied the motion to dismiss, and Sanders pleaded guilty to third-degree burglary, reserving for appeal the denial of his motion to dismiss the indictment. See Ankrom v. State, [Ms. CR-09-1148, Aug. 26, 2011] — So.3d —,— (Ala. Crim.App.2011).

Standard of Review

“[This] case involves only an issue of law and the application of the law to undisputed facts. Therefore, our review is de novo. Ex parte Walker, 928 So.2d 259, 262 (Ala.2005).” Yearby v. State, 95 So.3d 20, 22 (Ala.Crim.App.2012).

Discussion

The evidence presented at the hearing on the motion to dismiss established that the Birmingham Airport Authority (“the Authority”) owned the structure Sanders entered. The Authority had acquired the structure as a part of a federally funded noise-abatement program that had begun in the late 1980s. Under the terms of that program, the Authority was given federal funds to purchase the structure along with several other structures located in the area. The Authority acquired those structures solely to demolish them and then redevelop the land on which they were located to buffer noise from the airport.

Lowrenzo Taylor, who had been employed by the Authority as an airport engineer for more than 20 years, testified at the hearing. Taylor described the process the Authority used in acquiring and demolishing structures in the noise-abatement program, including the particular structure at issue in this case. Taylor stated that once the Authority acquired a property for demolition, it would advertise for bids from contractors to demolish any structure on the property and remove any hazardous material such as asbestos. Once a contractor secured the winning bid, that contractor would be cleared to demolish the structure. Taylor testified that typically the demolition of a structure would be accomplished within 90-120 days of its acquisition by the Authority. According to Taylor, once the contractor was cleared to demolish a structure, the contractor or his employees could take scrap materials from the structure because the structure was “essentially ... theirs at that point.” (R. 18.)

Taylor testified that once the property was acquired by the Authority, it could no longer be used for any purpose other than noise abatement, and it specifically could not be used as a residence. (R. 21.) Taylor testified that on the date of the offense the structure in which Sanders was arrested had been acquired by the Authority and was set for demolition by Britt Demolition, a contractor; specifically, Taylor identified the structure in a photograph taken on the date of the offense and identified the contractor’s symbol — “B/R”—marked on the structure, which Taylor testified meant that Britt Demolition had set the structure for demolition. Approximately four to six weeks after Sanders’s arrest, the structure was demolished and completely removed.

Section 13A-7-7(a), Ala.Code 1975, provides: “A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” (Emphasis added.) Sanders contends that the circuit court erred in denying the motion to dismiss the indictment because, he says, the structure he entered was not a “building” as that term is used in § 13A-7-7(a), Ala.Code 1975.

In Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005), the Alabama Supreme Court stated:

“In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there. Ex parte Moore, 880 So.2d 1131, 1140 (Ala.2003) (‘«¡rjijjg car(-iinai 0f statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.’ ” ’) (quoting Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003), quoting in turn Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996)). This Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998), explained:
“ ‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’
729 So.2d at 275-76 (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), additional citations omitted). See also 729 So.2d at 276 (explaining that the separation-of-powers doctrine requires a court to use the plain-meaning rule in construing a statute and that ‘only if there is no rational way to interpret the words as stated will [a court] look beyond those words to determine legislative intent’).”

The legislature has provided the following definition of “building” as that term is used in § 13A-7-7(a), Ala.Code 1975:

“BUILDING. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.”

§ 13A-7-K2), Ala.Code 1975. Thus, whether the structure Sanders entered in this case is a “building” under § 13A-7-7(a) depends on whether it could have been “entered and utilized by persons for business, public use, lodging or the storage of goods.” § 13A-7-l(2), Ala.Code 1975.

The State argues on appeal that “there is no evidence in the record to suggest that the house in this case was abandoned.” (State’s brief, p. 10.) Thus, the State argues, there is no evidence indicating that the structure was unsuitable to “be entered and utilized by persons for business, public use, lodging or the storage of goods,” § 13A-7-K2), Ala.Code 1975. We disagree. The undisputed facts indicate that (1) the structure could not have been legally “utilized by persons for business, public use, lodging or the storage of goods” and (2) the owner of the structure in fact did not intend to use it for any of the purposes listed in the statute. As noted, the Authority’s only intention in acquiring the structure was to demolish it, and, under the terms of the federal program by which the structure was acquired, the Authority was not permitted to use the structure for any of the purposes specifically listed in § 13A-7-l(2), Ala.Code 1975. Thus, the structure here did not come within the plain meaning of “building” as the legislature defined that term in § 13A-7-1(2), Ala.Code 1975.

In addition, the Commentary to § 13A-7-1 supports our conclusion that the plain meaning of “building” in § 13A-7-1, Ala. Code 1975, does not include the structure in this case. That Commentary states, in relevant part:

“‘Building’ includes a variety of structures in different contexts. The definition includes a building in its ordinary and usual sense — any structure which may be entered and used for business, public use, lodging or the storage of goods. It does not include a house that is still in the early stages of construction and which is not being lived in nor used for storage purposes, or an abandoned building awaiting demolition.”

(Emphasis added.)

Conclusion

Because the undisputed facts demonstrate that the structure Sanders entered was not a “building” under § 13A-7-l(2), Ala.Code 1975, the circuit court erred in denying Sanders’s motion to dismiss the indictment. Accordingly, we reverse the circuit court’s judgment and render a judgment in favor of Sanders as to the conviction for third-degree burglary.

REVERSED AND JUDGMENT RENDERED.

KELLUM and BURKE, JJ., concur.

WELCH, J., concurs in the result.

WINDOM, P.J., dissents.

      . The transcript of Sanders's guilty-plea hearing indicates that the State agreed, as a part of the plea agreement, to nolle pros a charge of possession of burglar’s tools, see § 13A-7-8, Ala.Code 1975. (R. 52-53.)

      . We cite the Commentary only to note that our holding is consistent with it. Thus, the instant case is distinguishable from Hiler v. State, 44 So.3d 543 (Ala.2009). In Hiler, the Alabama Supreme Court reversed a decision of this Court that held that the defendant’s conduct was excepted from the reach of the statute at issue there. Specifically, this Court had relied on the Commentary to create an exception to the statute at issue in Hiler. The Supreme Court reversed this Court’s judgment because, the Court held, this Court had construed the Commentary to the statute rather than the statute itself. 44 So.3d at 548 ("Because the Court of Criminal Appeals applied the plain language of the Commentary to § 13A-11-1I rather than the plain language of the statute itself in reaching its decision, we conclude that the Court of Criminal Appeals erred in reversing the trial court’s judgment and rendering a judgment in favor of Hiler as to the conviction for falsely reporting an incident.”).

      . We note that the legislature has provided substantially the same definition of "building” in two other criminal statutory provisions: § 13A-3-20(l), Ala.Code 1975 (applicable to justification and excuse), and § 13A-7-40(l), Ala.Code 1975 (applicable to arson offenses). Like the Commentary to § 13A-7-l(2), the Commentary to § 13A-3-20(l), Ala.Code 1975, includes the same language stating that the definition does not include "an abandoned building awaiting demolition.” The Commentary to § 13A-7-40(l) — the definition of "building” applicable to the article prohibiting arson' — does not include the language regarding "an abandoned building awaiting demolition.”


source: Caselaw Access Project

author: WISE, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (In re Curtis Maurice SANDERS v. STATE of Alabama).
    1120577.
    Supreme Court of Alabama.
    Sept. 27, 2013.

      Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Audrey K. Jordan, asst. atty. gen., for petitioner.
    Amber L. Ladner of Bradford Ladner, LLP, Mountain Brook, for respondent.
   WISE, Justice.

The State of Alabama petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ decision reversing Curtis Maurice Sanders’s conviction for third-degree burglary, see § 13A-7-7(a), Ala.Code 1975, that was entered pursuant to a guilty plea. Sanders v. State,, 145 So.3d 88 (Ala.Crim.App.2012). We granted certiorari review to consider, as an issue of first impression, whether an unoccupied house that is scheduled for demolition constitutes a “building” as that term is defined in § 13A-7-l(2), Ala.Code 1975, for purposes of § 13A-7-7(a), Ala. Code 1975. For the reasons set forth below, we reverse and remand.

Facts and Procedural History

On the morning of April 1, 2010, law-enforcement officers found Sanders taking items from a house located at 8413 5th Avenue North in Birmingham. The Birmingham Airport Authority (“the Authority”) had acquired the house as a part of a federally funded noise-abatement program. Under the terms of that program, the Authority was given federal funds to purchase the house, demolish it, and then redevelop the land on which it was located to buffer noise from the airport.

Sanders was indicted for third-degree burglary under § 13A-7-7(a), which provides:

“A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

(Emphasis added.) Section 13A-7-l(2) defines a “building” as

“[a]ny structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.”

Sanders filed a pretrial motion to dismiss the indictment, arguing that, as a matter of law, the State could not prove a key element of the offense because, he argued, the structure he had entered was not a “building” as that term is defined in § 13A-7-K2).

The trial court conducted a hearing on the motion to dismiss. During that hearing, Lowrenzo Taylor, who had been employed by the Authority for more than 20 years, testified that, once the Authority acquired a property for demolition, it would advertise for bids from contractors to remove any hazardous material, such as asbestos, from the structure; to demolish the structure; and to clear the land. The contractor who submitted the winning bid would be cleared to demolish the structure, usually within 90-120 days after its acquisition by the Authority. Taylor also testified that, once the contractor was cleared to demolish a structure, the contractor or his employees could take scrap materials from the structure because the structure was “essentially ... theirs at that point.” He further testified that, after the property was acquired by the Authority, it could no longer be used for “any ... normal purposes, like a residence.”

Taylor testified that, on the date of the offense, the structure in which Sanders was arrested was set for demolition by Britt Demolition, a contractor. Finally, he testified that he did not know whether anyone, including the demolition company, had stored any property of value inside the structure.

The trial court denied the motion to dismiss the indictment against Sanders. Pursuant to a negotiated agreement, Sanders entered a plea of guilty to third-degree burglary. The trial court sentenced him, as a habitual offender, to two years in prison, but suspended the sentence and placed him on probation. See § 13A-5-9(a)(1), Ala.Code 1975. When he entered his guilty plea, Sanders reserved the right to appeal the denial of his motion to dismiss the indictment against him.

Sanders appealed to the Court of Criminal Appeals, arguing that the State could not establish all the elements of third-degree burglary because, he alleged, the house, which was scheduled for demolition, was not a “building” as that term is used in § 13A-7-7(a). The Court of Criminal Appeals agreed with Sanders, reasoning as follows:

“The State argues on appeal that ‘there is no evidence in the record to suggest that the house in this case was abandoned.’ (State’s brief, p. 10.) Thus, the State argues, there is no evidence indicating that the structure was unsuitable to ‘be entered and utilized by persons for business, public use, lodging or the storage of goods,’ § 13A-7-l(2), Ala.Code 1975. We disagree. The undisputed facts indicate that (1) the structure could not have been legally ‘utilized by persons for business, public use, lodging or the storage of goods’ and (2) the owner of the structure in fact did not intend to use it for any of the purposes listed in the statute. As noted, the Authority’s only intention in acquiring the structure was to demolish it, and, under the terms of the federal program by which the structure was acquired, the Authority was not permitted to use the structure for any of the purposes specifically listed in § 13A-7-l(2), Ala.Code 1975. Thus, the structure here did not come within the plain meaning of ‘building’ as the legislature defined that term in § 13A-7-K2), Ala.Code 1975.
“In addition, the Commentary to § 13A-7-1 supports our conclusion that the plain meaning of ‘building’ in § 13A-7-1, Ala.Code 1975, does not include the structure in this case.2 That Commentary states, in relevant part:
“ ‘ “Building” includes a variety of structures in different contexts. The definition includes a building in its ordinary and usual sense — any structure which may be entered and used for business, public use, lodging or the storage of goods. It does not include a house that is still in the early stages of construction and which is not being lived in nor used for storage purposes, or an abandoned building awaiting demolition.’3
“(Emphasis added.)
“Conclusion
“Because the undisputed facts demonstrate that the structure Sanders entered was not a ‘building’ under § 13A-7-1(2), Ala.Code 1975, the circuit court erred in denying Sanders’s motion to dismiss the indictment. Accordingly, we reverse the circuit court’s judgment and render a judgment in favor of Sanders as to the conviction for third-degree burglary.
‘<2We cite the Commentary only to note that our holding is consistent with it. Thus, the instant case is distinguishable from Hiler v. State, 44 So.Bd 543 (Ala.2009). In Hiler, the Alabama Supreme Court reversed a decision of this Court that held that the defendant’s conduct was excepted from the reach of the statute at issue there. Specifically, this Court had relied on the Commentary to create an exception to the statute at issue in Hiler. The Supreme Court reversed this Court’s judgment because, the Court held, this Court had construed the Commentary to the statute rather than the statute itself. 44 So.3d at 548 (‘Because the Court of Criminal Appeals applied the plain language of the Commentary to § 13A-11-11 rather than the plain language of the statute itself in reaching its decision, we conclude that the Court of Criminal Appeals erred in reversing the trial court’s judgment and rendering a judgment in favor of Hiler as to the conviction for falsely reporting an incident.’).
“3We note that the legislature has provided substantially the same definition of ‘building’ in two other criminal statutory provisions: § 13A-3-20(l), Ala.Code 1975 (applicable to justification and excuse), and § 13A-7-40(l), Ala. Code 1975 (applicable to arson offenses). Like the Commentary to § 13A-7-l(2), the Commentary to § 13A-3-20(l), Ala. Code 1975, includes the same language stating that the definition does not include ‘an abandoned building awaiting demolition.’ The Commentary to § 13A-7-40(l) — the definition of ‘building’ applicable to the article prohibiting arson — does not include the language regarding ‘an abandoned building awaiting demolition.’ ”

Sanders, 145 So.3d at 91-92.

Standard of Review
“““This Court reviews pure questions of law in criminal cases de novo.’ ” ’ Ex parte Brown, 11 So.3d 933, 935 (Ala. 2008) (quoting Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004), quoting in turn Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).”

Hiler v. State, 44 So.3d 543, 546 (Ala.2009).

Discussion

The State argues that the Court of Criminal Appeals erred when it found that the house Sanders entered did not constitute a “building” as that term is defined in § 13A-7-l(2). In reviewing this case, we are guided by the following principles of statutory construction:

‘“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.’ DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998).
““‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross and Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).”

City of Prattville v. Corley, 892 So.2d 845, 848 (Ala.2003).

The State argues that the Court of Criminal Appeals looked beyond the plain language of § 13A-7-l(2) and determined that the house was not a “building” because it was scheduled to be demolished and because it was subject to restricted use under the noise-abatement contract. The State then asserts:

“The statute does not expressly or implicitly exclude structures awaiting demolition or require courts to examine the owner’s intent and legal obligations before determining whether it qualifies as a building. The lower court’s consideration of either fact falls outside the natural, plain, ordinary, and commonly understood meaning of the words used in this statute.
“Likewise, the statute does not require that the structure actually be used for one of the purposes listed. Rather, it requires only that the structure ‘may’ be used for one of the listed purposes. In this case, because the unoccupied house could have been used by the demolition company for business purposes or the storage of goods, the house fell within the plain language of the statute. Once Britt Demolition contracted to demolish the house, the house became part and parcel of the demolition company’s business.... The company retained the right to remove any property from within the house including the scrap metal Sanders stole.”

(Petition, at pp. 3-4.) The State also argues that, as in Hiler v. State, 44 So.3d 543 (Ala.2009), which the Court of Criminal Appeals relied upon and attempted to distinguish, the Commentary to § 13A-7-1 cannot override the plain language of § 13A-7-l(2). We agree with the State.

The Court of Criminal Appeals acknowledged the following language from Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005):

“ ‘In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there.’ ”

145 So.3d at 90. However, in its analysis, the Court of Criminal Appeals construed the definition of “building” in light of the terms of the demolition contract and permissible and intended uses for the house in this case rather than in light of the ordinary possible uses for a house. In so doing, it went beyond the plain language used in § 13A-7-l(2) and construed the statute in light of the facts of this case and the Commentary to § 13A-7-1.

Section 13A-7-l(2) defines a “building” as “[a]ny structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods.... ” Black’s Law Dictionary 1552 (9th ed. 2009) defines a “structure” as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Obviously, a house is a “construction ... built up or composed of parts purposefully joined together” that may be “entered and utilized by persons for business, public use, lodging or the storage of goods.” Thus, by its plain language, § 13A-7-l(2) would include a house in the definition of “building.”

We note, as did the Court of Criminal Appeals, that the Commentary to § 13A-7-1 states that the definition of “building” does not include “an abandoned building awaiting demolition.” However, in Hiler v. State, supra, this Court stated the following regarding the Commentary to a statute when the language of the statute is plain and unambiguous:

“In the present case, the essence of the State’s argument is that the Court of Criminal Appeals erred by applying the plain language of the Commentary to § 13A-11-11, rather than the plain language of that statute, in reversing the trial court’s judgment as to Hiler’s conviction for falsely reporting an incident. We agree.
“Simply put, the plain language of § 13A-11-11 is unambiguous; it provides no exception for persons who falsely report an incident to public officials who are engaged in police or fire-control activities. Although the Commentary to § 13A-11-11 purports to create such an exception, the language of the Commentary does not override the plain language of the statute. See Sheffield v. State, 708 So.2d 899, 900 n. 2 (Ala.Crim.App.1997) (‘The commentary does not override the form and meaning of the statutory language, when viewed in light of established principles of statutory construction.’ (quoting Hawkins v. State, 549 So.2d 552, 560 (Ala.Crim.App.1989) (Bowen, J., concurring), citing in turn Sutherland Statutory Construction § 45.07)); see also Ex parte Edwards, 816 So.2d 98, 102 n. 3 (Ala.2001) (‘Our consideration of the commentary ... is tempered by § 1 — 1—14(b), Ala.Code 1975, which states that “[a]ll historical citations and notes set out in this Code are given for the purpose of convenient reference, and do not constitute part of the law.” ’); Coleman v. State, 565 So.2d 685, 687 (Ala.Crim.App.1990) (“‘[A] commentary to a statute, while of some persuasive value, is not binding upon the courts.” ’ (quoting Herndon v. State, 563 So.2d 1065,1068 (Ala.1990))).
“Furthermore, as noted by the State, had the legislature intended to exclude from the purview of § 13A-11-11 instances in which a false report is made to public officials who are engaged in police or fire-control activities, it could have included express language to that effect in the statute. The legislature, however, did not do so, and this Court may not read into the statute language the legislature did not include. See City of Pinson v. Utilities Bd. of Oneonta, 986 So.2d 367, 373 (Ala.2007) (‘ “It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so.” ’ (quoting Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986))); Ware v. Timmons, 954 So.2d 545, 556 (Ala.2006) (‘[W]e presume “that the legislature does not intend to make any alteration in the law beyond what it explicitly declares.”’ (quoting Duncan v. Rudulph, 245 Ala. 175, 176, 16 So.2d 313, 314 (1944))).”

44 So.3d at 547-48.

Similarly, the plain language of § 13A-7-1(2) is unambiguous and does not include an exception for an abandoned building awaiting demolition. As in Hiler, although the Commentary to § 13A-7-1 purports to create such an exception, the language of the Commentary does not override the plain language of the statute. See Hiler, supra, and the cases cited therein. If the legislature had intended to exclude an abandoned building awaiting demolition from the purview of the statute, it could have included express language to that effect in the statute. However, it did not do so, and this Court will not read such language into the statute. See Hiler.

Based on the plain language of § 13A-7-1(2), the house from which Sanders was taking items did constitute a “building” for purposes of §§ 13A-7-l(2) and 13A-7-7(a), Ala.Code 1975. Therefore, the Court of Criminal Appeals erred when it reversed Sanders’s conviction for third-degree burglary and rendered a judgment in his favor. Accordingly, we reverse the Court of Criminal Appeals’ judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

       Note from the reporter of decisions: On December 13, 2013, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion.


author: SCALES, J. LOGUE, J.,

text:
    Jordan M. DELONG, Appellant, v. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 3D13-2196.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Rehearing Denied Aug. 22, 2014.
    Gene Johnson, Tallahassee; Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant.
    Emily J. Norton, Assistant General Counsel, Tallahassee, for appellee.
    Before ROTHENBERG, LOGUE and SCALES, JJ.
   SCALES, J.

Delong appeals a final order of the Florida Public Employees Relations Commission (“PERC”) dismissing the appeal of his termination for lack of jurisdiction. We affirm.

I. FACTS

Delong was hired as a sworn law enforcement officer by Florida’s Department of Environmental Protection (“DEP”) in 2007.

In 2012, the Florida Legislature enacted House Bill 1383 which, among other things, consolidated the DEP’s Division of Law Enforcement with the Division of Law Enforcement of The Florida Fish & Wildlife Conservation Committee (“FWC”).

The relevant portion of House Bill 1383, related to the transfer of DEP law enforcement personnel to the FWC, reads as follows: “... employees who are transferred from the Department of Environmental Protection ... to fill positions transferred to the Fish and Wildlife Conservation Commission shall retain and transfer any accrued annual leave, sick leave, and regular and special compensatory leave balances.” Fla. HB 1383, § 5 (2012).

The effective date of House Bill 1388 was July 1, 2012; hence, on July 1, 2012, Delong was transferred from the Law Enforcement Division of the DEP to the Law Enforcement Division of FWC.

Later that month, on July 30, 2012, De-long was involved in a motor vehicle crash at John Pennekamp Coral Reef State Park. After the accident, detectives from the Monroe County Sheriffs Office issued Delong a criminal citation for leaving the scene of an accident involving property damage.

On March 26, 2013, FWC delivered notice to Delong that FWC would be terminating Delong’s employment with FWC, with such termination effective April 15, 2013. On May 2, 2013, FWC confirmed its dismissal of Delong with a hand-delivered letter outlining the basis for the dismissal.

FWC’s May 2, 2013, dismissal notice indicated that Delong had been on “probationary status” in Florida’s career service system, and therefore Delong had no right to appeal his termination to PERC.

Notwithstanding FWC’s assertion that Delong had no PERC appeal rights, De-long appealed his dismissal to PERC.

On May 31, 2013, FWC filed a motion to dismiss Delong’s appeal alleging that PERC lacked jurisdiction to hear Delong’s appeal of his termination. Specifically, FWC asserted that Delong became a “new employee” of FWC on July 1, 2012 (i.e., the effective date of the transfer outlined in House Bill 1383), and, pursuant to sections 110.213 and 110.217, Florida Statutes, Delong was required to complete at least one year of probationary employment with FWC in order for PERC to have jurisdiction to hear Delong’s appeal.

FWC relied upon' Rule 60L-33.003(2)(d), F.A.C. which, prior to being amended in January 2014, read, in pertinent part, as follows:

(d) Probationary or Permanent Status— An employee shall be given probationary status or permanent status in accordance with the following.
I. Upon original appointment, promotion or demotion to a different broadband level, or any time an employee moves between agencies, an employee shall be given probationary status unless ... the legislature has designated that an employee shall be moved but shall not have status as a new employee.

On July 19, 2013, after conducting an evi-dentiary hearing, a PERC hearing officer issued a recommended order concluding that PERC lacked statutory authority to hear appeals from probationary employees challenging their dismissal.

On August 13, 2013, PERC issued its final order adopting the hearing officer’s recommended order. This appeal timely ensued.

II. ANALYSIS

The issue before the court is whether PERC had jurisdiction to hear Delong’s appeal of his dismissal from FWC. Specifically, the court must decide whether PERC’s determination that Delong was a probationary employee — rather than a permanent status employee — was clearly erroneous.

PERC has jurisdiction to review appeals of permanent status employees in Florida’s career service system who challenge their dismissal from employment. §§ 110.227(5)(a); 447.207(8), Fla. Stat (2012).

An employee who has not attained permanent status serves at the pleasure of the agency head, and that employee may be dismissed at the agency head’s discretion. § 110.217(2) Fla. Stat. An employee on probationary status attains permanent status upon successful completion of at least a one-year probationary period in his or her current position. § 110.217(2) Fla. Stat.

At oral argument, Delong conceded that PERC followed the dictates of the version of Rule 60L-33.003(d) then in effect.

Delong, however, argues that PERC’s application of this rule to his situation effectively deprives him of a vested property right, to wit: his status as a permanent employee, which was earned while Delong was employed by DEP. We disagree.

Florida’s Department of Management Services (“DMS”) is expressly directed by Section 110.217(1), Florida Statutes, to promulgate rules regarding the employment status of agency employees. Pursuant to that authority, DMS promulgated the subject rule.

The rule provides uniform guidance to state agencies regarding the probationary/permanent status of employees who, by legislative action, are transferred from one department to another.

The rule states that unless the legislation effectuating the transfer designates that transferred employees shall not have “new employee” status, then all transferred employees shall have “new employee” status. Put another way, the rule requires that all employees who are transferred from one agency to another are considered probationary employees unless otherwise designated by the Legislature.

Delong was transferred from the DEP to the FWC on July 1, 2012, the effective date of HB 1881. Hence, irrespective of Delong’s prior status at the DEP, pursuant to the rule and HB1388, Delong became a “new employee” of FWC on July 1, 2012. While the language of HB1383 expressly transferred “any accrued annual leave, sick leave, and regular and special compensatory leave balances” of transferred employees, HB 1383 does not authorize transferred employees to retain their permanent status.

Since Delong was transferred from the DEP to the FWC on July 1, 2012, Delong plainly had not successfully completed one year at his position with FWC when he was dismissed from FWC in May 2013. Hence, PERC lacks jurisdiction to hear Delong’s appeal because Delong was a probationary FWC employee, not a permanent one. § 110.217(2) Fla. Stat.

The dissent suggests that this Court should effectively nullify the subject rule, disregard Section 110.217(1), Florida Statutes, requiring DMS to promulgate uniform rules related to employment status, and essentially require state agencies to follow a court-imposed rule of statutory construction for transfer statutes, such as HB 1381. The dissent’s proffered rule of statutory construction would dictate that transferred employees retain their employment status, unless otherwise directed by the transfer legislation. Indeed, DMS has since amended Rule 60L-33.003 to incorporate that very concept. However, De-long has identified no authority which would require or allow the retroactive application of DMS’ amended rule to De-long’s case.

Additionally, the prior iteration of the rule was in effect in 2012 when the Legislature adopted HB 1383. We must presume that the Legislature was aware of DMS’ rule when it adopted HB 1383. Cf. Barnett v. Dep’t of Mgmt. Servs., 931 So.2d 121, 132 (Fla. 1st DCA 2006) (“A well-recognized maxim of statutory construction is that the legislature must be presumed to be aware, at the time it enacts new legislation, of the status of the law then existing, including pertinent judicial case law.”); accord Hollar v. Int’l Bankers Ins. Co., 572 So.2d 937, 939 (Fla. 3d DCA 1990).

If we were to apply DMS’ “new” rule to HB 1383, rather than the version of the rule in effect when the Legislature passed HB 1383, this Court would be grafting onto HB 1383 language regarding the probationary/permanent status of transferred employees that the Legislature itself, for whatever reasons, chose not to include in the legislation. Since the Legislature has expressly directed DMS to promulgate such policies via the rule-making process, we decline to effectively amend HB 1381 by altering the rule of construction in effect when HB 1381 became law.

Finally, we note the Legislature specifically included in HB 1383 language which allowed transferred employees to retain certain enumerated earned benefits such as annual leave, sick leave, and certain leave balances. Had the Legislature intended for transferred employees to also retain their employment status, one must presume that the Legislature would have similarly included such language. See Subirats v. Fid. Nat’l Prop., 106 So.3d 997, 1000 (Fla. 3d DCA 2013) (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) (“Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.”)). However, the Legislature chose not to make employees transferred by HB 1381 anything but probationary status employees.

Affirmed.

ROTHENBERG, J., concurs.

LOGUE, J.,

(dissenting).

In 2012, the Legislature enacted a law that transferred the Division of Law Enforcement of the Department of Environmental Protection to the Fish and Wildlife Conservation Commission. When it transferred the Division, did the Legislature intend to terminate the permanent career service status of the law enforcement officers in the Division and require the officers to undergo a one-year probation during which they could be fired at will as if they were new employees? This case turns on legislative intent, pure and simple.

As a case turning on legislative intent, the crucial fact is that the text of the law transferring the Division is completely silent on the issue of career status. The language of the law simply does not address this issue. Because I am unpersuaded by the Commission’s attempt to infer from the Legislature’s silence an intent to deprive the officers of such an important, constitutionally-protected right, I dissent. As the current Department Rule now recognizes, when the Legislature can easily express an intent to remove an individual’s existing property right by including clear language in the law, there is little justification for the Commission to insert such words into the law by inference.

FACTS AND PROCEDURAL BACKGROUND

Jordan M. Delong was a sworn law enforcement officer with the Florida Department of Environmental Protection with over four years of experience. As such, under the laws of our State, Delong was a permanent career service employee who could not be fired at will. He had the right not to be dismissed, suspended, or demoted unless the State proved before an independent hearing officer that he violated specific rules of employment.

In 2012, the Legislature enacted Chapter 2012-88 of the Laws of Florida, a law transferring the Division of Law Enforcement in which Delong served from the Department of Environmental Protection to the Florida Fish and Wildlife Conservation Commission. The law also provides that the officers’ leave balances transferred with them. Chapter 2012-88 does not address whether the transfer changed the status of the officers as permanent employees.

On May 2, 2013, within one year of the transfer, the Fish and Wildlife Commission dismissed Delong for alleged violations of its rules. In the dismissal notice, the Commission informed Delong that the transfer of his unit had the effect of reducing the status of the officers in the Division, including his, from permanent employees to new employees who could be fired at will during a one-year probation. Under his new status as a probationary employee, the Commission reasoned, De-long had no right to a hearing to determine whether the Commission had actual cause for his dismissal.

Delong appealed to the Public Employees Relations Commission, which has jurisdiction to hear appeals filed by permanent status career service employees. § 110.227(5), Fla. Stat. (2013). The Public Employees Relations Commission dismissed Delong’s appeal, holding that because Delong was only a probationary employee, it lacked jurisdiction over his appeal. This appeal followed.

ANALYSIS

The officers’ status as permanent career service employees was a constitutionally-protected property right because they could only be disciplined or dismissed for cause. § 110.227(1); Johnson v. Beary, 665 So.2d 334, 335 (Fla. 5th DCA 1995) (“A statute which allows a demotion or dismissal only on the basis of ‘cause’ creates a constitutionally protected interest in public employment.”) (citation omitted). It was a property right the Legislature itself gave to the officers. Art. Ill, § 14, Fla. Const, (creating a civil service system for state employees); § 110.217(2), Fla. Stat. (2013) (granting permanent status to career service employees who complete a one year probationary period). The obvious public purpose of protecting the officers from arbitrary demotions and dismissals is to allow the officers to enforce the law without fear or favor.

Of course, the Legislature had the power to prospectively change the status of the officers within the career service system from permanent to probationary. See Dep’t of Corrs. v. Fla. Nurses Ass’n, 508 So.2d 317, 320 (Fla.1987) (upholding a legislative action that terminated the permanent status of certain career service employees). Thus, the Legislature clearly had the power to take away the officers’ permanent status and the rights associated with it. See State ex rel. McIver v. Swank, 152 Fla. 565, 12 So.2d 605, 609 (1943) (holding there is no protected property right in the continuation of legislatively-created employment once that employment is legislatively abolished). The issue in this case is whether the Legislature would do so, as the Commission maintains, without expressly saying it.

To answer this question we must construe Chapter 2012-88 to determine whether it reflects the Legislature’s intent to deprive the officers of this right. “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (citing Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003)). “To discern legislative intent, a court must look first and foremost at the actual language used in the statute.” Id. (citation omitted). As the Florida Supreme Court repeatedly has explained:

when the language of the statute is clear and unambiguous and conveys a clear and definite meaningf,] the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.

Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164-65 (Fla.2006) (internal quotations and citations omitted).

Applying these principles to Chapter 2012-88, we arrive at the first and, I believe, dispositive problem in the Commission’s argument: nowhere in the language of the law does the Legislature state any express intent to remove the officers’ permanent status. Whether the officers should keep their permanent status, resort to probationary employees, or permanently lose their permanent status is simply not addressed in the text.

This silence is significant. In the past, when the Legislature removed this right from a class of civil servants, it did so expressly. In fact, it took great pains to explain the reason why it was taking a step that could have such a serious impact on the lives of a class of employees. See Fla. Nurses Ass’n, 508 So.2d at 319-20. The Legislature’s past practice clearly suggests the Legislature would not normally remove such a right indirectly and by inference only. Courts should be hesitant to assume the Legislature intended to deprive a person of a constitutionally-protected right unless the Legislature expressly says so in the text.

The Commission, however, contends the Legislature signaled its intent to remove the officers’ right to permanent employee status when it included the following language in the law:

Notwithstanding chapter 60K-5, Florida Administrative Code, or any provision of law to the contrary, employees who are transferred from the Department of Environmental Protection and the Department of Agriculture and Consumer Services to fill positions transferred to the Fish and Wildlife Conservation Commission shall retain and transfer any accrued, annual leave, sick leave, and regular and special compensatory leave balances.

Ch. 2012-88, § 5, Laws of Fla. (emphasis added). Citing to the canon of statutory construction “expressio unius est exclusio alteráis” — i.e., the mention of one thing implies the exclusion of another — the Commission argues that basic statutory construction requires the court to conclude the Legislature intentionally omitted permanent status from the list of specified benefits retained by transferred employees.

While plausible, the Commission’s argument is ultimately unpersuasive. In the first place, we should keep in mind this wise and useful maxim is misused when it is applied in a mechanical manner. As the First District recently recognized:

This maxim, meaning “the expression of one thing implies the exclusion of the other,” is “strictly an aid to statutory construction and not a rule of law.” Smalley Transp. Co. v. Moed’s Transfer Co., 373 So.2d 55, 56 (Fla. 1st DCA 1979). The correctness of the principle as applied to a particular statute “depends entirely on context,” In re Sealed Case No. 97-3112, 181 F.3d 128, 132 (D.C.Cir.1999), including the history and structure of the legislation being examined, see In the Matter of Am. Reserve Corp., 840 F.2d 487, 492 (7th Cir.1988). Its use must be governed by common sense, such that it should not be applied to defeat the “natural and obvious sense” of a statute’s provisions. The Federalist No. 83, at 495-96 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

Crews v. Fla. Pub. Emp’rs Council 79, AFSCME, 113 So.3d 1063, 1071-72 (Fla. 1st DCA 2013). The maxim has been properly called “a valuable servant, but a dangerous master.” Id. (citation omitted).

Indeed, the maxim “properly applies only when the court can determine that the matters expressly mentioned are intended to be exclusive.” Id. (declining to apply the maxim when context did not indicate that matters expressly mentioned were intended to be exclusive). In the present case, there is nothing in the language, structure, or legislative history of Chapter 2012-88 indicating that the transfer of the officers’ leave was intended to be exclusive.

In this regard, there is a perfectly reasonable explanation for the language used by the Legislature that has nothing to do with the Legislature’s supposed intent to make the transfer of leave balances exclusive of the officers’ career status. When a State employee transfers from one agency to another, a complex set of rules governs what happens to the employee’s leave balances. Some types of leave balances transfer; some must be paid upon transfer by the agency losing the employee; some must be paid upon transfer by the receiving agency; some are forfeited; and some are dependent upon whether the receiving agency’s pay plan accepts the leave balances as to whether they are transferred or forfeited. Fla. Admin. Code R. 60L-34.0081-34.0044 (2014). These issues not only impact the employee, but also impact the budgets of the agency losing and the agency gaining the employees.

The transfer made the resolution of these issues pressing and urgent. The language relied upon by the Commission resolved these specific personnel and budgetary issues created by the transfer. It goes beyond the normal and ordinary meaning of these words to discover in them an unspoken legislative intent to accomplish the larger and more controversial legislative goal of terminating the officers’ constitutionally-protected right to career status.

The Commission’s interpretation can be reached only by inserting words, phrases, and ideas into the text where the Legislature itself did not do so. This court is simply “not at liberty to add words to the statute that were not placed there by the Legislature.” Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 512 (Fla.2008) (citation omitted). Rather than read language and ideas into the law that do not exist, the better approach is simply to assume the Legislature meant exactly what it said and no more.

This result is not changed by Rule 60L-33.003(2)(d) of the Florida Administrative Code, which was repealed while this appeal was pending. If anything, the fact that this Rule was replaced with the opposite rule completely undermines the Commission’s position.

At the time this matter was reviewed by the Public Employees Relations Commission, Florida’s Department of Management Services had in place a rule that provided that an employee transferred by the Legislature automatically lost permanent status and reverted to probationary status unless the Legislature said otherwise. The Rule provided:

(d) Probationary or Permanent Status— An employee shall be given probationary status or permanent status in accordance with the following:
1. Upon original appointment, promotion or demotion to a different broadband level, or any time an employee moves between agencies, an employee shall be given probationary status unless a demotion is to a position in which the employee has previously held permanent status in the agency or unless the legislature has designated that an employee shall be moved but shall not have status as a new employee.

Fla. Admin. Code R. 60L-33.003(2)(d) (2013), amended by Fla. Admin.’ Code R. 60L-33.003 (2014) (emphasis added).

This Rule purports to elevate a court-created aide to statutory construction into an automatic and mechanical rule of law: it leaves no room to consider the actual language, structure, or legislative history of the law to which it will be applied. Moreover, it applies not only to laws that existed at the time it was promulgated but also to future laws. In both ways, the Rule roams far afield from the proper use of an agency’s power to promulgate regulations. An agency may have special insights into interpreting specific laws, but it has no special expertise regarding court-created rules of statutory construction and no special expertise regarding laws enacted in the future. A rule interpreting the intent of the Legislature regarding future laws that have not yet been written, filed, or enacted appears to be a pure legislative act, something which an agency cannot do.

The second flaw is just as serious. The Department that promulgated this Rule has entirely abandoned it. While this appeal was pending, the Department reversed itself, executed a perfect 180-degree turn, and adopted the opposite principle as a binding rule of law. Fla. Admin Code R. 60L-33.003(5) (2014). The Department replaced this Rule with new language which provides that an employee retains his or her status in the career service system upon a legislatively-mandated transfer unless the legislation specifically states that the employee shall not retain their status. The new Rule states: “[i]n the case of a legislatively-mandated transfer, an employee retains the status held in the position prior to the time of transfer unless the legislature directs otherwise.” Id.

In terms of the power to promulgate regulations, this new version suffers the same deficiencies as the first. Nevertheless, to the extent the Division’s regulations are viewed as authoritative, this Court must be guided by the new regulation.

After all, one of the cardinal rules governing our work as an appellate court is to apply the law in existence when the appeal is decided. Nash v. Gen. Motors Corp., 734 So.2d 437, 440 (Fla. 3d DCA 1999) (recognizing that “[d]ecisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since the time of trial” (quoting Lowe v. Price, 437 So.2d 142, 144 (Fla.1983))).

Applying the current rule, we would have to hold that Delong retained his status as a career service employee as a result of the legislatively-mandated transfer because the Legislature did not specifically direct otherwise.

CONCLUSION

As the current Department Rule now recognizes, when the Legislature can easily express an intent to remove an individual’s existing property right by including clear language in the law, there is little justification for the Commission to insert such words into the law by inference. I would hold that Officer Delong did not lose his career status as a result of the transfer of his Division from one department to another, and that the Public Employees Relations Commission accordingly has jurisdiction to hear Officer Delong’s appeal of his dismissal.

      . While not relevant to this appeal, FWC alleged that Delong's conduct involving the July 30, 2012, motor vehicle crash violated certain standards applicable to career service employees.

      . Pursuant to Section 110.227, Florida Statutes (2012), PERC has jurisdiction to hear appeals filed by permanent status career service employees.

      .Rule 60L-33.003 was promulgated by Florida's Division of Management Services which, pursuant to Section 110.217(1), Florida Statutes, is directed to promulgate uniform administrative rules governing, inter alia, state agency employee employment status.

      .While an agency’s interpretation of a statute generally is subject to de novo review by an appellate court, see § 120.68(7)(d), Fla. Stat. (2012); Brown v. State Comm'n on Ethics, 969 So.2d 553, 556 (Fla. 1st DCA 2007), an appellate court is required to give deference to an agency interpretation of a statute within the agency’s substantive jurisdiction, and will not reverse the agency unless the interpretation is clearly erroneous. See Brown, 969 So.2d at 557. Pursuant to Section 447.207(8), Florida Statutes, PERC is expressly designated to hear appeals of dismissals of any "permanent employee” in the State Career Service System "in the manner provided in Section 110.227.” Hence, Sections 4 and 5 of House Bill 1381 (i.e., the sections regarding the transfer to FWC of DEP’s law enforcement personnel), the statutes relating to PERC’s jurisdiction, and the rules promulgated by DMS by virtue of such statutes, are plainly within PERC's substantive jurisdiction; therefore we review the order on appeal — which necessarily involved PERC’s interpretation of these statutes and rules — using the "clearly erroneous” standard.

      . Section 110.217(1) reads in its entirety as follows: “(1) The department shall develop uniform rules regarding original appointment, promotion, demotion, reassignment, lateral action, separation, and status that must be used by state agencies.” (emphasis added)

      . This rule is consistent with the expression of legislative intent manifested in the plain language of Section 110.217(2), Florida Statutes, requiring employees to complete at least one year in their current position before attaining permanent status. We cannot conclude that the statutory construction of Section 110.217(2) manifested in the rule is clearly erroneous. The rule manifests a reasonable construction that an employee legislatively transferred from one agency to another has not remained in that employee's "current position” unless expressly designated in the legislation effectuating the transfer.

      . It bears noting that PERC's final order dismissing Delong’s appeal for lack of jurisdiction is consistent with PERC’s final order in Tactuk v. FWC, 27 FCSR 206 (2012) (confirming that DEP law enforcement officers transferred to the FWC by virtue of HB1383 were placed on probationary status).

      . The dissent argues both: (i) that this is a case requiring the determination of legislative intent, and (ii) that this court should apply to Delong's case the amended rule which is now in effect, rather than the version of rule applicable when the Legislature adopted HB 1381. When the 2012 Legislature adopted HB 1381, it knew precisely how HB 1381 would impact the employment status of transferred employees because the Legislature had the benefit of the version of the rule then in effect. It seems incongruous to suggest the intent of the 2012 Legislature was informed or influenced by a DMS administrative rule that would not be promulgated until January 2014, some two years after the 2012 Legislature's sine die.

      . The Department is charged with promulgating uniform administrative rules regarding the status of state employees for use by state agencies. § 110.217(1), Fla. Stat. (2013).


author: PER CURIAM.

text:
    Ricardo PEREZ and Mayda Labrada, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D13-575.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.
    Rehearing Denied Aug. 19, 2014.

      Law Offices of Gonzalez & Associates, P.A., and J.L. Perez, for appellants.
    Franklin Legal Group, P.A., and Jonathan D. Franklin, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See New England Mut. Life Ins. Co. v. Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., 690 So.2d 1354 (Fla. 3d DCA 1997).


author: LAGOA, J.

text:
    Laurinston BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2980.
    District Court of Appeal of Florida, Third District.
    June 11, 2014.
    Rehearing Denied Aug. 19, 2014.
    Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER, and SCALES, JJ.
   LAGOA, J.

Laurinston Bailey (“Bailey”) appeals from an order revoking his probation. While Bailey raises three issues on appeal, we address only the third issue raised by Bailey and reverse on that point.

Bailey was charged with thirteen counts in case number 11-25177. On March 23, 2012, he plead guilty to the charges, and the trial court placed him on probation for counts 1, 2, 3, 5, 6, 7, and 9. The State subsequently filed affidavits of violation of probation, and after a hearing on October 5, 2012, the trial court revoked Bailey’s probation in case number 11-25177 as to all the counts, 1 through 13. As the State properly concedes, because Bailey was never placed on probation as to counts 4, 8, 10, 11, 12, and 13, it was error to revoke probation on those counts.

Accordingly, we reverse the trial court’s order revoking Bailey’s probation only to the extent the trial court in case number 11-25177 improperly revoked probation on counts 4, 8,10,11, 12, and 13. We remand for the trial court to vacate the revocation of probation on those counts. Otherwise, the trial court’s order is affirmed without pi’ejudice to Bailey to raise any claims of ineffective assistance of counsel in an appropriate post-conviction proceeding. See Broche v. State, 701 So.2d 446 (Fla. 3d DCA 1997).

Affirmed in part, reversed in part, and remanded.


author: EMAS, J.

text:
    The STATE of Florida, Appellant, v. Erika REYAN, Appellee.
    No. 3D12-2468.
    District Court of Appeal of Florida, Third District.
    June 18, 2014.
    Rehearing Denied Aug. 19, 2014.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellant.
    Jose M. Quiñón, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Erika Reyan was charged by Information with a single count of racketeering in violation of section 895.03(3), Florida Statutes (2003). Reyan filed a motion to dismiss, contending the RICO prosecution was barred by the five-year statute of limitations. The trial court granted the motion and dismissed the Information against Reyan, from which the State appeals. For the reasons that follow, we affirm.

FACTS AND BACKGROUND

The relevant facts are as follows:

On September 24, 2010, Reyan (together with five co-defendants) was charged in count One of a two-count Information with violation of the Racketeer-Influenced and Corrupt Organization Act (“RICO” or “racketeering”). Count One set forth the allegations of the substantive RICO Count in three segments.

General Allegations

The general allegations of Count One of the Information charged that the defendants:

[O]n or between October 1, 2002 through September 30, 2005 ... employed by or being associated with an enterprise, to wit: The Wackenhut Corporation, a legal entity, did unlawfully, knowingly and feloniously conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity, in violation of s. 895.03 and 777.011 Florida Statutes ....

The Enterprise

In further support of Count One, the State described the “enterprise” as:

The Wackenhut Corporation, that is a corporation and/or a legal entity comprised of the above named Defendants and other individuals both known and unknown to the State Attorney, who played different roles in the Enterprise. These Enterprise members associated together for the purpose of falsifying payroll documentation in order to continue to provide security officer services to Miami-Dade Transit (MDT) with respect to the Security Officer Services Contract (Contract).

The Pattern of Racketeering Activity (Predicate Acts)

By way of setting forth the “pattern of racketeering activity,” the Information contained 840 individual predicate acts comprised of: an organized scheme to defraud (in violation of section 817.034, Florida Statutes (2003)) and grand theft (in violation of section 812.014, Florida Statutes (2003)).

Each of the predicate acts was alleged to have occurred on a specific date falling within the October 1, 2002-September 30, 2005 timeframe, and the State alleged that each charged defendant participated in at least two incidents of racketeering activity. None of the 840 predicate acts named the individual defendants who participated in that particular predicate act and instead named the Enterprise (Waekenhut) generally.

Significantly, nowhere in Count One’s general allegations, description of the Enterprise, or any of the 840 predicate acts, did the State allege that Reyan or her co-defendants engaged in a conspiracy to commit RICO. Nor does Count One allege that the defendants conspired to commit any of the predicate acts that comprise the pattern of racketeering activity.

By contrast, Count Two of the Information alleged that one of the co-defendants engaged in a conspiracy (together with uncharged co-conspirators) to commit RICO in violation of section 895.03(4), Florida Statutes (2003). Reyan, however, was not charged in Count Two.

Detective David Colon’s affidavit (“the Affidavit”) in support of the arrest warrant for Reyan was attached to the information. The Affidavit described a scheme that arose out of a Security Officer Services Contract (the “Contract”) between Waek-enhut and Miami-Dade Transit (“MDT”). The Contract required Waekenhut to provide security services and personnel to man specific locations within MDT, and Wackenhut’s procedures required security personnel to log their hours worked in a sign-in register. Waekenhut utilized the sign-in registers to submit its hours and corresponding invoices to Miami-Dade County (“the County”).

As described in the Affidavit, the County conducted an audit of the Contract and the work performed, covering a three-year period from October 2, 2002 through September 30, 2005. The audit revealed that Waekenhut overbilled the County a minimum of $76,657.07 during this period and submitted at least 3,517.51 hours for security services never performed. The audit and resulting investigation formed the basis for the State’s allegations that Wacken-hut and its employees engaged in a pattern of racketeering activity to perpetrate a scheme to defraud the County by falsifying sign-in registers, generating false payroll and monthly invoices, and receiving monies for services not performed.

The Affidavit indicated that Reyan began working for Waekenhut in 1998 as secretary and assistant to the project manager. Reyan was primarily responsible for preparing payroll, which included generating the invoices that would be submitted to the County for payment. Sign-in registers were submitted from the various posts to Reyan, who would then input the information in Wackenhut’s payroll and invoice computer program.

Pursuant to the Affidavit, the investigation also revealed that:

• Reyan was present during conversations in which it was discussed that security personnel were leaving their posts early but were submitting paperwork (and receiving payments) for entire shifts.
• Reyan knew how many hours needed to be billed for each post; when registers were incomplete or contained discrepancies, she inquired and ultimately received names in order to complete the registers and bill the County.
• From October 1, 2002 through December 31, 2003, Reyan prepared invoices to be submitted to the County. These invoices contained 309 fraudulent entries, resulting in a minimum of 1,968 hours for security services never performed and a minimum overbilling of $39,665.74.
• Reyan took a leave of absence from Wackenhut in February 2004. She resigned from her position in the Miami office on May 21, 2004 and thereafter accepted a position with Wackenhut in Atlanta. Reyan trained her replacement in one day; however, after Reyan left the Miami office, her replacement would sometimes contact Reyan by telephone.

Reyan contended that the substantive RICO prosecution was barred by the five-year statute of limitations. Reyan pointed out that the last predicate act attributable to her in the charging document occurred on December 28, 2003, which was the date of the last billing invoice transaction for which she was accused of being an individual participant. This act occurred almost seven years before the filing of the Information on September 24, 2010. Rey-an argued that the State could not rely on the acts of the other co-defendants in the enterprise to satisfy the limitations period since the State did not charge Reyan with a RICO conspiracy.

The State argued in response that the statute of limitations did not commence from the date of the last act personally performed by the defendant, but from the date of the last act performed by the enterprise, so long as the defendant remained associated with the enterprise at that time.

The trial court held a hearing on the motion to dismiss, and at that hearing the parties stipulated that Reyan stopped advising her replacement as of June 2004 and that Reyan had no contact with the Miami office after that date. The State argued nevertheless that Reyan remained a part of the enterprise, that the enterprise engaged in acts which constituted an ongoing scheme to defraud, and that this scheme continued through September 30, 2005. Reyan argued that the ongoing scheme to defraud was wholly dependent on the grand theft charges, which were not continuing offenses, and therefore the statute of limitations should be measured from December 28, 2003, the date when Reyan engaged in the last act alleged against her.

In granting the motion to dismiss, the trial court found that the State had to commence the prosecution against Reyan within five years of her last personal commission of a predicate act. It was undisputed that the last billing invoice transaction completed by Reyan occurred on December 28, 2003. The court found that the five-year limitations period as to the substantive RICO offense against Reyan expired on December 28, 2008. Because the State did not file the substantive RICO against Reyan until September 24, 2010, the trial court dismissed the charge against Reyan.

THE RELEVANT STATUTORY PROVISIONS

Sections 895.03(3) and (4), Florida Statutes (2003), referred to as substantive RICO and RICO conspiracy, respectively, provide:

(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1), subsection (2) or subsection (3).

The term “racketeering activity” as defined in section 895.02(1), Florida Statutes (2003) “means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit” any crime chargeable by indictment or information under specifically enumerated criminal statutes, including those encompassed under the subject Information (grand theft and organized scheme to defraud).

Other relevant statutory definitions include:

• An “enterprise,” which is defined as “any ... group of individuals associated in fact although not a legal entity[.]” § 895.02(3), Fla. Stat. (2003); and

• A “pattern of racketeering activity,” which is defined as

engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.
§ 895.02(4), Fla. Stat. (2003).

A violation of the RICO provisions is governed by a five-year statute of limitations. § 895.05(10), Fla. Stat. (2003).

ANALYSIS

The question before this Court is whether, in a substantive Florida RICO prosecution, the statute of limitations begins to run from the date of the last predicate act in which the defendant personally participated or the date of the last predicate act committed by the enterprise as a whole. The parties agree that if it is the former, the prosecution in this case is barred by the five-year statute of limitations. We review this question of law de novo. State v. Pasko, 815 So.2d 680 (Fla. 2d DCA 2002).

The trial court based its determination in part on O’Malley v. Mounts, 590 So.2d 437 (Fla. 4th DCA 1991). In O’Malley, the issue was whether the statute of limitations barred prosecution of O’Malley, under a fifteen-count indictment of O’Malley and multiple co-defendants, charging grand theft, substantive RICO, and an organized scheme to defraud, arising out of the theft of corporate bonds.

The State commenced the O’Malley prosecution on July 12, 1989. The defendant moved to dismiss based upon statute of limitations. O’Malley contended the thefts were alleged to have occurred on October 13, 1983 and May 4, 1984, the dates on which he received personal loans secured by bonds he wrote for an insurance company. The State argued that the offenses charged were “continuing offenses,” that O’Malley’s crimes continued until July 18, 1984 (the date on which O’Malley defaulted on the loans), and that the prosecution was therefore commenced within the five-year limitations period. The trial court denied the motion to dismiss, and on a petition for writ of prohibition, the Fourth District Court of Appeal determined the prosecution was barred by the statute of limitations. Our sister court first determined that grand theft is not a “continuing offense” and that the date of the individual criminal acts of grand theft would determine when the limitations period commenced.

Additionally, the Fourth District analyzed the substantive RICO and scheme to defraud in the same manner, focusing not on the dates of the acts of the enterprise (which the State argued continued through July 18,1984) or the dates of the acts of its other members, but on the date of the criminal acts O’Malley personally committed:

In Count 1 of the indictment, petitioner was charged with racketeering, and in Count 15, he was charged with committing an organized scheme to defraud. The statute of limitations for the offenses is five years from the date of commission of the crime as to the racketeering charge, section 895.05(10), Florida Statutes (1987), and four years as to the offense of committing an organized scheme to defraud, section 775.15(2)(a), Florida Statutes (1987). While the state stipulated that petitioner committed no criminal acts subsequent to July 18, 1984, petitioner maintained that the alleged criminal acts occurred on October 13,1983 and May 4,1984, barring prosecution on those counts after October 13, 1988, for Count 15, and May 4, 1989 for Count 1. The state did not bring the indictment until July 12, 1989. We agree with the petitioner and grant the petition as to Counts 1 and 15.

Id. at 438.

In the instant case, the State attempts to distinguish O’Malley by arguing that O’Malley does not address RICO conspiracy but rather is limited to the charge of substantive RICO. However, in both O’Malley and in our case, the defendant was charged with a substantive RICO, not a RICO conspiracy. Additionally, none of the predicate acts set forth in the instant Information contain an allegation of conspiracy. Instead, the 840 predicate acts are based on discrete incidents occurring on specific dates. Each predicate act alleged that Wackenhut, on a date certain, falsely billed specific hours for work not performed, thereby giving rise to the grand theft and organized scheme to defraud charges.

The State also contends that, because Florida’s statutory definition of “racketeering activity” includes the language “to conspire to commit,” a substantive RICO charge can be established by proof of one or more conspiracies to commit the predicate acts, and that the Information need not actually allege a conspiracy to commit the predicate acts of racketeering. Thus, the State contends, Reyan’s involvement in conspiring to commit the predicate acts did not end until the scheme was complete on September 80, 2005. While the State can indeed establish a substantive RICO charge by proving that defendants conspired to commit predicate acts of racketeering activity, this does not dispense with the altogether different requirement that the State plead a RICO conspiracy if it intends to charge a defendant with a RICO conspiracy.

More to the point, the State’s argument appears to conflate the very different concepts of a RICO conspiracy charge and a substantive RICO charge that alleges one or more conspiracies to commit predicate acts of racketeering. To better understand the distinction between these concepts, we look for guidance to federal courts which have construed the federal RICO statutes upon which Florida’s RICO scheme was largely modeled. See Gross v. State, 765 So.2d 39 (Fla.2000); Mese v. State, 824 So.2d 908 (Fla. 3d DCA 2002).

In a substantive RICO prosecution, the gravamen of the “crime” is the pattern of racketeering activity; that is, the individual predicate acts alleged to have been committed by the defendant. The limitations period commences upon the date the “crime” is completed which, for substantive RICO purposes, is the date of the last charged predicate act committed by the individual defendant. United States v. Yannotti, 541 F.3d 112 (2d Cir.2008); United States v. Yashar, 166 F.3d 873 (7th Cir.1999); United States v. Starrett, 55 F.3d 1525 (11th Cir.1995); United States v. Torres Lopez, 851 F.2d 520 (1st Cir.1988); United States v. Persico, 832 F.2d 705 (2d Cir.1987).

In a RICO conspiracy, by contrast, the “crime” is premised not upon the commission of the predicate acts of racketeering, or even an agreement to commit predicate acts, but upon an agreement to participate in the affairs of the criminal enterprise through a pattern of racketeering activity.' As the Fifth Circuit held in United States v. Elliott, 571 F.2d 880, 902 (5th Cir.1978), the essence of a RICO conspiracy is an agreement “to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity and not merely to commit each of the predicate crimes to demonstrate a pattern of racketeering activity.” The court in Pérsico agreed:

Although proof of a RICO conspiracy requires a demonstration that a defendant agreed to commit two or more predicate acts, rather than a simple showing that the defendant agreed to join the conspiracy, the agreement proscribed by [the federal RICO conspiracy statute] is conspiracy to participate in a charged enterprise’s affairs, not conspiracy to commit predicate acts.

Pérsico, 832 F.2d at 713.

In a RICO conspiracy, therefore, the limitations period does not commence until the objectives of the conspiracy are accomplished or abandoned. As the Pérsi-co court further observed: “By his agreement, a RICO defendant signals his membership in a conspiracy to conduct the affairs of the charged enterprise. Thus the RICO conspiracy statute is most closely analogous to other conspiracy statutes pursuant to which overt acts in furtherance of the conspiracy need not be pleaded or proven.” Id.

In Pérsico, the Second Circuit also addressed the commencement of the limitations period for a substantive RICO. The court first looked to its prior decision in United States v. Walsh, 700 F.2d 846 (2d Cir.1983). In Walsh, the Second District held that to establish a defendant’s violation of a federal substantive RICO charge, the government had to prove that the defendant committed two or more predicate offenses, at least one of which occurred within the five-year statute of limitations. As the Pérsico court noted: “Central to our analysis [in Walsh ] was the fact that Walsh himself had participated in a timely predicate act.” Id. at 714. Emphasizing the point, the Pérsico court added: “[W]e focused [in Walsh ] solely on the defendant who raised the limitations defense and determined that he had committed one predicate act within the limitations period.” Id,. In rejecting the same argument advanced by the State here — that the limitations period for a substantive RICO should commence from the date of the last act by any person associated with the enterprise— Pérsico held:

Based on the reasoning of our prior decisions, we conclude that in order to satisfy the statute of limitations for section 1962(c) [the federal substantive RICO statute], the government must demonstrate that a defendant committed at least one predicate racketeering act within the limitations period. Such a conclusion comports with the structure of section 1962, which treats conspiracies to violate RICO and substantive RICO offenses separately. The focus of section 1962(c) is on the individual patterns of racketeering engaged in by a defendant, rather than the collective activities of the members of the enterprise, which are proscribed by section 1962(d) [the federal RICO conspiracy statute]. We reject the government’s attempt to analyze section 1962(c) as if it were a second RICO conspiracy statute.

Id.

Florida’s RICO provisions, like those of its federal counterpart, treat substantive RICO and RICO conspiracy separately. We agree with the reasoning of Pérsico and its progeny that the determination of the commencement of the limitations period for a substantive RICO charge must focus on the date of the individual defendant’s last predicate act rather than the date of the last predicate act of the enterprise or its other members.

The State’s argument that the limitations period for Reyan’s substantive RICO charge should commence from the date of the last act of the enterprise would blur, beyond recognition, the distinction between a substantive RICO and a RICO conspiracy. While the State may indeed plead and prove a substantive RICO by establishing a pattern of racketeering activity that includes conspiracies to commit predicate acts, this does not convert a plainly-pled substantive RICO charge into a RICO conspiracy. A conspiracy to commit predicate acts of racketeering is different in kind from a conspiracy to conduct the affairs of the enterprise through a pattern of racketeering activity. The former describes a method by which a substantive RICO can be charged and proven. The latter describes a RICO conspiracy offense. The State did not charge Reyan (as it did a co-defendant in Count Two) with a conspiracy to conduct the affairs of the enterprise through a pattern of racketeering activity. Simply put, the State charged Reyan with a substantive RICO, and its effort to transform it into a conspiracy charge to avoid a limitations bar must fail.

We therefore affirm the trial court’s dismissal of the single substantive RICO count against Reyan as barred by the statute of limitations.

      . The Information was later amended to include two additional co-defendants and to reformat the substantive RICO Count into the discrete sections described above.

      . The project manager was the only co-defendant charged with conspiracy in Count Two of the information.

      . Section 895.05(10), Florida Statutes (2003), provides in pertinent part: "Notwithstanding any other provision of law, a criminal or civil action or proceeding under this act may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues

      . Because we hold that the limitations period commenced upon the date of the last predicate act alleged to have been committed by Reyan (December 28, 2003), we apply the statutory provisions in effect at that time. Art. X, § 9, Fla. Const. (2003); Lane v. State, 337 So.2d 976 (Fla.1976). See also Perez v. State, 545 So.2d 1357 (Fla.1989); Abdullah v. State, 883 So.2d 843 (Fla. 5th DCA 2004). We note, however, that the statutory provisions at issue were not amended between 2003 and 2005.

      . Each of the 840 predicate acts contained identical language except for the exact date, the amount of hours logged and billed, and the specific post location where the service was provided:
      The Wackenhut Corporation billed Miami-Dade County for [] hours of security services valued at $[], allegedly performed at Post [] on [] 200[], when in truth and in fact [] hours were fraudulently billed valued at $[ ].

      . Florida's RICO statute expressly includes conspiracy in its definition of racketeering activity. See § 895.02(1), Fla. Stat. Although the federal substantive RICO statute does not contain such express language, it has nevertheless been interpreted to include certain conspiracies within its definition of racketeering activity. See e.g., United States v. Weisman, 624 F.2d 1118, 1123 (2d Cir.l980)(hold-ing that that predicate acts for substantive RICO can be established by proof of conspiracy to commit offenses enumerated in 18 U.S.C. § 1961(1)(D)); United States v. Ruggiero, 726 F.2d 913 (2d Cir. 1984)(same, following Weisman). See also, United States v. Manzella, 782 F.2d 533 (5th Cir.l986)(adopt-ing reasoning of Weisman and holding that predicate acts for substantive RICO can be established by proof of conspiracy to commit offenses enumerated in 18 U.S.C. § 1961(1)(A)); U.S. v. Pungitore, 910 F.2d 1084 (3d Cir.1990) (same, following Manzel-la).

      . In further distinguishing between a RICO conspiracy and a substantive RICO, the Second Circuit in Yannotti observed: "Indeed, to secure [the defendant’s] conviction for RICO conspiracy, the government was not required to prove the actual commission of a single predicate act by [the defendant] or any other conspirator.” 541 F.3d at 129. See also, United States v. Tello, 687 F.3d 785, 792 (7th Cir.2012) (a RICO conspiracy charge "does not require proof that the defendant committed two predicate acts of racketeering, that he agreed to commit two predicate acts, or, for that matter, that any such acts were ultimately committed by anyone”) (internal citations omitted). This underscores the fact that the RICO conspiracy statute proscribes a defendant’s agreement to participate in the conduct of the affairs of an enterprise, not a defendant’s agreement to commit predicate acts. See Starrett, 55 F.3d at 1543. Moreover, and unlike general conspiracies, a RICO conspiracy does not require proof that the defendant agreed to commit a predicate act. Id.; Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997).

      . In stark juxtaposition with the allegations against Reyan, described supra at 2-3, Count Two alleged that a co-defendant, together with other individuals
      employed by or being associated with an enterprise, to wit: The Wackenhut Corporation, a legal entity, did unlawfully and feloniously agree, conspire, combine, or confederate with each other... to violate Section 895.03, Fla. Stat., that is, to conduct or participate, directly or indirectly, in said enterprise through a pattern of racketeering activity..., said pattern of racketeering activity consisting of at least two (2) incidents of racketeering activity enumerated in Section 895.02(1) Fla. Stat., including Organized Scheme to Defraud. .. and Grand Theft....
      During the course of the conspiracy, the defendants either personally engaged in at least two incidents of racketeering, or intended to otherwise participate in the affairs of the enterprise with the knowledge that other members of the conspiracy would engage in at least two incidents of racketeering....