author: PER CURIAM. PERRY, J.,

text:
    Angela SAMPLES, etc., et al., Petitioners, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Respondent.
    No. SC10-1295.
    Supreme Court of Florida.
    May 16, 2013.

      Scott Ramsey McMillen, and Allison Claire McMillen of McMillen Law Firm, P.A., Mayanne Downs, and Kimberly D. Healy of Gray Robinson, P.A., Frederick Stanton Wermuth of King, Blackwell Zehnder & Wermuth, P.A., Orlando, FL, for Petitioners.
    Wilbur E. Brewton, Kelly Brewton Plante, and Tana Duden Storey of Brew-ton Plante, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

In this case, we consider a certified question concerning the award of compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). We have for review the decision of the Fifth District Court of Appeal in Samples v. Florida Birth-Related Neurological, 40 So.3d 18 (Fla. 5th DCA 2010). The Fifth District upheld the constitutionality of section 766.31(l)(b)l, Florida Statutes (2010), which provides for an award not exceeding $100,000 to the parents or legal guardians of an infant found to have sustained a birth-related neurological injury. The court held that the statute does not violate equal protection, is not void for vagueness, and does not violate the Samples’ right to access the courts.

The Fifth District certified the following question to be of great public importance:

Does the limitation in section 766.31(l)(b)l., Florida Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions?

Id. at 31. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative, and we approve the result of the Fifth District’s decision in Samples.

I. BACKGROUND

In its decision below, the Fifth District set forth the following facts and procedural history:

In August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007). Her parents, Angela and Kenneth Samples (“the Samples”), filed a claim with the Division of Administrative Hearings (“DOAH”) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”). The Florida Birth-Related Neurological Injury Compensation Association (“NICA”) agreed that MacKenzie’s injuries were compensable under the plan.
Pursuant to a stipulation between the parties, NICA agreed to pay expenses for MacKenzie’s care pursuant to section 766.31(l)(a) and reasonable attorney’s fees and other expenses pursuant to section 766.31(l)(c). The stipulation resolved the Samples’ major claims except for the amount of parental compensation under section 766.31(l)(b)l. NICA agreed to make a lump sum payment of $100,000 to both parents jointly. However, the Samples reserved the right to have a hearing before an [administrative law judge (ALJ) ] to raise the issue of the interpretation and constitutionality of section 766.31(l)(b)l.
The ALJ approved the stipulation and afforded the parties a hearing to offer any proof they perceived pertinent to the interpretation of section 766.31(l)(b)l. The parties filed a Joint Pre-Hearing Stipulation which included the following “Admitted Facts”:
(1) Once NICA ascertains that a claim is covered, NICA frequently offers a lump sum payment of a parental award totaling $100,000, regardless of whether there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ.
(2) Pursuant to section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to section 766.31(l)(b)l., Florida Statutes. An ALJ has never ordered NICA to pay a parental award in excess of $100,000, regardless of whether there was one parent or two parents involved in the claim.
(3) In a typical covered claim, NICA does not customarily argue that the parental award should be less than the full $100,000 authorized.
(4) Once the ALJ has ordered payment of a parental award in the amount of $100,000, NICA pays the $100,000 parental award by check made payable to both parents jointly, unless otherwise ordered by the ALJ.
(5) In the past, when there was a dispute between the parents with respect to the amount of the parental award to go to each parent, the ALJ has specified in the Final Order how much of the parental award would be paid to the mother and how much would be paid to the father. In those instances, the combined parental award was typically for the full $100,000.
At the hearing, NICA introduced various documents comprising the legislative history of the Plan. The ALJ also took official notice of two final orders: Waddell v. Florida Birth-Related Neurological Injury Compensation Association, 1999 WL 1483760, DOAH Case No. 98-2991N (May 11, 1999), and Wojtowicz v. Florida Birth-Related Neurological Injury Compensation Association, 1994 WL 1027875, DOAH Case No. 93-4268N (July 22, 1994). The ALJ entered a Final Order denying the Samples’ claim for an additional $100,000 as part of the parental award. He found that the legislative history of section 766.31(l)(b)l. showed that the Legislature clearly intended that the maximum award of $100,000 was for “both parents or legal guardians, and not for each parent or legal guardian.” The ALJ allowed the parties to make arguments and present evidence on the constitutional issues but did not rule on them.

Samples, 40 So.3d at 20-21.

The Samples appealed the ALJ’s final order, claiming that section 766.31(l)(b)l (the “parental award provision”) was ambiguous and challenging the provision on three constitutional grounds: equal protection, vagueness, and access to courts. Samples, 40 So.3d at 23. The Fifth District first held that the parental award provision “clearly and unambiguously provides” for a single award of $100,000 to both parents in the aggregate. Id. at 22. The Fifth District then denied each of the Samples’ constitutional claims, holding that the parental award provision: (1) does not cause disparate treatment among similarly situated persons and — even assuming discrimination did exist — is rationally related to the State’s legitimate interest in maintaining the actuarial soundness of the Plan, id. at 25-26; (2) “is sufficiently clear in its intent to provide no — fault economic compensation to parents” and thus allows for an award to be split — if at all — “based on articulable economic reasons supported by detailed factual findings,” id. at 28; and (3) “provides both a reasonable alternative remedy and a commensurate benefit” to the Samples’ right of access to courts and is the only method of meeting the overpowering public necessity of ending the medical malpractice crisis. Id. at 30.

The Samples now ask this Court to answer the certified question in the affirmative and quash the Fifth District’s decision in Samples. Additionally, the Samples ask this Court to review the Fifth District’s holdings that the parental award provision unambiguously provides for a single award of $100,000 to the parents of an injured child, that the parental award provision is not unconstitutionally vague, and that the parental award provision does not violate the Samples’ right of access to the courts.

II. ANALYSIS

We review a district court’s decision regarding the constitutionality of a statute de novo. State v. Sigler, 967 So.2d 835, 841 (Fla.2007). In the analysis that follows, we first explain that the parental award provision unambiguously provides for only a single award of $100,000. We then answer the certified question in the negative, explaining why the parental award provision does not violate equal protection. After that, we explain why the parental award provision neither is void for vagueness nor unconstitutionally limits the right of access to courts.

A. Statutory Interpretation

The Samples assert that the parental award provision is ambiguous because it could reasonably be interpreted as either providing for an award of $100,000 per parent or as providing for only a single $100,000 award per claim. We have previously explained that “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Fla. Birth-Related, Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So.3d 992, 997 (Fla.2010) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). The parental award provision provides for “[pjeriodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.” § 766.31(l)(b)l, Fla. Stat. (2010). We agree with the Fifth District that “[tjhis language cannot be reasonably interpreted to provide multiple awards of $100,000 to each parent of a qualifying child.” Samples, 40 So.3d at 22.

The plain language of the parental award provision clearly states that a singular “award” shall be paid to the plural “parents or legal guardians” of an injured child, “which award shall not exceed $100,000.” § 766.31(l)(b)l, Fla. Stat. (2010). This language does not lend itself to the interpretation — advanced by the Samples — that more than one award may be given or that the total sum of the parental award may amount to more than $100,000. If such a meaning had been intended, the Legislature would have stated that an award be made to “each parent or legal guardian,” which awards “shall not exceed $100,000 each.” Because the statute is unambiguous, we will not look behind the words of the parental award provision to determine if the Legislature intended otherwise. See Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005) (holding that where a “statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent”).

B. Equal Protection

Having determined that the parental award provision clearly provides for only a single award of $100,000 to both parents of an injured child, we now consider the question certified to us by the Fifth District — does the provision violate equal protection? The United States Constitution forbids each state from “denying] to any person within its jurisdiction the equal protection of the laws.” Amend. XIV, § 1, U.S. Const. Similarly, the Florida Constitution provides that “[a]ll natural persons, female and male alike, are equal before the law.” Art. I, § 2, Fla. Const.

The Samples claim that — under the parental award provision — similarly situated parents are treated differently because those parents who apply for an award alone can receive twice the amount awarded to parents who share or split a parental award. The Fifth District held that the parental award provision does not treat similarly situated persons differently because all people within the statutory classification of “parents” are treated equally in that all “parents” — whether applying for an award singly or jointly — can receive no more than $100,000. Samples, 40 So.3d at 24. The Fifth District also held that any discrimination caused by the provision was “minimal, unintentional and not arbitrary” and that the provision was rationally related to the State’s legitimate interest in preserving the actuarial soundness of the Plan. Id. at 27. The Fifth District therefore upheld the constitutionality of the parental award provision. We agree that the provision does not violate the equal protection clauses of the Florida and United States Constitutions.

Because neither a suspect class nor a fundamental right is implicated here, we review the Samples’ equal protection claim under the rational basis test. See Westerheide v. State, 831 So.2d 93, 110 (Fla.2002). To be entitled to relief under the rational basis test, the Samples must show that the parental award provision does not “bear some rational relationship to legitimate state purposes.” Id. at 110. It is not our task “to determine whether the legislation achieves its intended goal in the best manner possible, but only whether the goal is legitimate and the means to achieve it are rationally related to the goal.” Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So.2d 930, 938 (Fla. 4th DCA 1986). A statute does not fail rational basis scrutiny simply “because it might have gone farther than it did.” Newman v. Carson, 280 So.2d 426, 430 (Fla.1973) (quoting Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)).

Limiting the parental award to $100,000 per claim — as opposed to per parent — is rationally related to maintaining the actuarial soundness of the Plan. The facts stipulated to by the parties establish that the administrative law judge has always ordered payment of the full $100,000 authorized by the parental award provision. Any additional payment above the $100,000 authorized by the provision would undeniably have a negative effect on the Plan’s actuarial soundness. As the Fifth District succinctly noted, “the less money NICA is required to pay, the easier it will be for the Plan to remain actuarially sound.” Samples, 40 So.3d at 26.

Moreover, the actuarial soundness of state programs has been upheld as a legitimate state interest by several courts faced with equal protection claims. See Loxahatchee, 496 So.2d at 938 (holding that a statutory amendment exempting public school facilities from impact and service availability fees was rationally related to the legitimate state interest in keeping public school construction costs within reasonable bounds); Day v. Mem'l Hosp. of Guymon, 844 F.2d 728, 731 (10th Cir.1988) (holding that a medical malpractice “notice of claim” provision was rationally related to several legitimate state interests, including “the maintenance of fiscal stability”); Farrier v. Teacher’s Ret. Bd., 328 Mont. 375, 120 P.3d 390, 395 (2005) (holding that a Montana retirement benefit statute was rationally related to the state’s legitimate interest in “keepfing] the budget and retirement system actuarially sound”); Rybak v. State Emp.'s Ret. Bd., 154 Pa.Cmwlth. 586, 624 A.2d 286, 288 (1993) (holding that the “legitimate state goal here was actuarial soundness” when reviewing an equal protection challenge to Pennsylvania’s two-tiered retirement compensation classification); Osick v. Pub. Emp. Ret. Sys. of Idaho, 122 Idaho 457, 835 P.2d 1268, 1273-74 (1992) (holding that a statute providing for offset against disability retirement benefits in the amount of annual workers’ compensation payments advanced the state’s legitimate interest in maintaining “adequate funding and actuarial soundness” of the state public employee retirement system); Caruso v. City of Omaha, 222 Neb. 257, 383 N.W.2d 41, 45 (1986) (holding that “the actuarial soundness of the system is one ... justification” for a statute requiring city employees to contribute to their retirement system). We hold that the State of Florida likewise has a legitimate interest in the actuarial soundness of the Plan. Therefore, because limiting the parental award to $100,000 per claim is rationally related to maintaining the actuarial soundness of the Plan, the parental award provision does not violate equal protection.

As support for the conclusion that the statute violates equal protection, the dissent relies on Shapiro v. Thompson, 394 U.S. 618, 627, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 670-71, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which held that a “statutory prohibition of [welfare] benefits to residents of less than a year creates a classification which constitutes an invidious discrimination” and thus denies “equal protection of the laws.” But Shapiro — as its holding clearly shows— dealt with a classification of an entirely different character than the classification at issue here. Shapiro recognized that “the effect of the waiting-period requirement” was “to create two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction,” and that there was “weighty evidence that exclusion from the jurisdiction of the poor who need or may need relief was the specific objective of these provisions.” Id. at 627, 628, 89 S.Ct. 1322. The Court concluded that “the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.” Id. at 629, 89 S.Ct. 1322. The denial of “welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction” “serves to penalize the exercise of’ the constitutional right to move from one jurisdiction to another. Id. at 634, 89 S.Ct. 1322. Applying strict scrutiny, the Court determined that no compelling state interest justified a classification impinging on “the fundamental right of interstate movement.” Id. at 638, 89 S.Ct. 1322. Such an invidious classification could not be justified by “[t]he saving of welfare costs.” Id. at 633, 89 S.Ct. 1322. The parental award provision of the Plan, however, does not in any way penalize the exercise of any constitutional right. Nor does the parental award provision discriminate against a class of needy persons.

In dicta, the Shapiro Court observed that “even under traditional equal protection tests a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional.” Id. at 638 (footnote omitted). This was based on the Court’s evaluation of the various reasons offered as justifications for the waiting period: facilitating the planning of the welfare budget; providing an objective test of residency; minimizing the opportunity for recipients fraudulently to receive payments from more than one jurisdiction; and encouraging early entry of new residents into the labor force. Id. at 634-38, 89 S.Ct. 1322. Rejecting those reasons as unfounded, the Court observed that the various governmental jurisdictions “do not use and have no need to use the one-year requirement for the governmental purposes suggested.” Id. at 638, 89 S.Ct. 1322. Nothing in Shapiro supports the suggestion that a classification designed to reduce the cost of a government program is inherently without any rational basis and thus invidious.

We agree with the Fifth District’s conclusion that our equal protection analysis in St Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla.2000), does not dictate a different result. In St. Mary’s Hospital, we considered, inter alia, whether the noneconomic damages cap in the arbitration provisions of the Medical Malpractice Act — which provides that “[njoneconomic damages shall be limited to a maximum of $250,000 per incident” — limits the aggregate recovery of all claimants with respect to a single incident or the individual recovery of each claimant. 769 So.2d at 967 (emphasis omitted) (quoting § 766.207(7)(b), Fla. Stat. (1997)). Having determined that the legislative intent behind the Medical Malpractice Act was “to provide a mechanism for the prompt resolution of medical malpractice claims through mandatory presuit investigation and voluntary binding arbitration of damages [and] to provide substantial incentives to claimants and defendants to voluntarily submit them cases to binding arbitration,” we concluded that the $250,000 limit applied to each individual claimant. Id. at 970. We reasoned that doing so promoted the intended “early resolution of medical negligence claims” by providing incentives for claimants, defendants, and liability insurers to voluntarily arbitrate damages. Id.

We further noted that “were we to interpret the noneconomic damages cap to apply to all claimants in the aggregate, ... such an interpretation would create equal protection concerns.” Id. at 971. We reasoned that limiting the $250,000 per incident to an aggregate award would result in the disparate treatment of the deaths “of a wife who leaves only a surviving spouse ... [and] of a wife who leaves a surviving spouse and four minor children.” Id. at 972. The same concerns are not present here.

Whereas the provision of the Medical Malpractice Act at issue in St. Mary’s Hospital expressly concerns fault-based noneconomic damages for survivors of the deceased, the Plan at issue here establishes a system of no-fault compensation. The no-fault character of the Plan sets the parental award provision apart from the statutory limitation on fault-based damages at issue in St. Mary’s Hospital. Limitations on damages that raise equal protection concerns under a fault-based system are dissimilar and appropriately viewed differently than limitations on compensation under a system where eligible claimants are assured of a recovery without regard to fault.

C. Vagueness

The Samples argue that the parental award provision is unconstitutionally vague — and therefore void — because it fails to give the administrative law judge guidance on how much of the $100,000 to grant in each case and — when necessary— how to split the award between parents. We reject this argument.

The void-for-vagueness doctrine flows from the Due Process Clause of the United States Constitution and “bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its mean-mg and differ as to its application.’ ” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Connolly v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). The doctrine is therefore designed to protect individuals from arbitrary and discriminatory application of the law by ensuring that all laws clearly notify the public of the specific conduct required or forbidden. Bouters v. State, 659 So.2d 235, 237 (Fla.1995). The doctrine comes into play where the enforcement of legislation involves “the exaction of obedience to a rule or standard which [is] so vague and indefinite as really to be no rule or standard at all.” A.B. Small Co. v. Am. Sugar Refining Co., 267 U.S. 233, 239, 45 S.Ct. 295, 69 L.Ed. 589 (1925).

The parental award provision, however, is not a provision which requires or forbids conduct. The Samples have failed to establish that the vagueness doctrine should be extended to the context presented by this case to invalidate a statute because it affords a measure of discretion to an administrative judge. The Samples cite no authority which would support such an application of the void-for-vagueness doctrine. We conclude that the application of the doctrine in this context is wholly unwarranted by the rationale for the doctrine.

D. Access to Courts

The Samples also challenge the constitutionality of the parental award provision by claiming that the provision violates their rights of access to the courts. The Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Art. 1, § 21, Fla. Const. We have previously interpreted article 1, section 21 to mean that

where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla.1973). A statute restricting access to the courts is therefore not permitted “unless one of the Kluger exceptions is met; i.e., (1) providing a reasonable alternative remedy or commensurate benefit, or (2) legislative showing of overpowering public necessity for the abolishment of the right and no alternative method of meeting such public necessity.” Smith v. Dep’t of Ins., 507 So.2d 1080, 1088 (Fla.1987). Here, the parental award provision provides a reasonable alternative remedy to the Samples’ right to access the courts for redress of their injury.

As the Fifth District noted, under the provision “affected parents receive a streamlined recovery in an administrative setting without the need to prove fault and other damages.” Samples, 40 So.3d at 29. We have previously held that a similar no-fault compensation scheme provided a reasonable alternative remedy — despite the fact that it awarded less than might be obtained under traditional tort remedies— because it provided the compensation “regardless of fault and without the delay and uncertainty of tort litigation.” Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991) (holding that the workers’ compensation statute reducing benefits to eligible workers still provided reasonable alternative remedy by continuing to provide full medical care and wage-loss payments). We are not convinced by the Samples’ argument that — because the parental award provision severely truncates the amount that parents could receive from a jury in non-economic damages — it does not provide a reasonable alternative remedy.

As stated above, the express purpose of the Plan is “to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” § 766.301(2), Fla. Stat. (2010). The Plan as a whole — including the parental award provision — provides an alternative remedy to the uncertain and speculative compensation parents might receive through traditional tort remedies. As well as providing the $100,000 parental award, the Plan specifically provides for particular expenses incurred by parents due to the child’s injury. Additionally, the Plan does not act as the exclusive remedy in cases “where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property.” § 766.303(2), Fla. Stat. (2010).

We therefore hold that the Plan — including the parental award provision — provides a reasonable alternative remedy to a parent’s right to access the courts for redress of their child’s neurological birth-related injury. See Macri v. Clements & Ashmore, P.A., 15 So.3d 762, 766 (Fla. 1st DCA 2009) (holding that “even if recovery is not actually obtained under the Plan the no-fault system of compensation therein is a reasonable alternative to the civil recourse which might have otherwise been available”). Accordingly, we reject the Samples’ argument.

III. CONCLUSION

In light of the above, we answer the question certified to us by the Fifth District in the negative and approve the result of the Fifth District’s decision below.

It is so ordered.

POLSTON, C.J., and CANADY, J., concur.

LEWIS, J., concurs in result.

LABARGA, J., concurs in result only.

PERRY, J., concurs in part and dissents in part with an opinion, in which PARIENTE and QUINCE, JJ„ concur.

PERRY, J.,

concurring in part and dissenting in part.

The certified question of great public importance in this case is whether “the limitation in section 766.31(l)(b)l., Florida Statutes, of a single award of $100,000 to both parents violate[s] the Equal Protection Clause of the United States and Florida Constitutions?” Samples v. Florida Birth-Related Neurological, 40 So.3d 18, 31 (Fla. 5th DCA 2010). I concur with the majority’s holding . that section 766.31(l)(b)l., Florida Statutes (2010) (the “parental award provision”), unambiguously provides for only a single award of $100,000. However, I dissent from the majority’s holding that the parental award provision does not violate equal protection and would answer the certified question in the affirmative. As such, I would find it to be both unnecessary and outside the realm of the certified question to address the parties’ alternative constitutional arguments regarding vagueness and access to courts.

In applying the rational basis test, the majority in its equal protection analysis appears to implicitly acknowledge that the parental award provision treats similarly situated parents differently. But it reasons that “[l]imiting the parental award to $100,000 per claim — as opposed to per parent — is rationally related to maintaining the actuarial soundness of the [Florida Birth-Related Neurological Injury Compensation Plan (the Plan) ].” Majority op. at 917. I disagree upon finding that the distinction between parents pursuing a claim individually versus jointly is imper-missibly invidious for equal protection purposes, and that the parental award provision is intended to compensate parents individually for noneconomic damages.

INVIDIOUS DISTINCTION

The United States Supreme Court has recognized that, although a state has “a valid interest in preserving the fiscal integrity of its programs,” and thus “may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program,” it “may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (holding that statutory prohibition of welfare benefits to state or District of Columbia residents of less than one year violated equal protection), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 670-71, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Although Shapiro dealt with a fundamental right and therefore applied the strict scrutiny test, the Supreme Court noted that the classification at issue would look to fail even the “traditional test” of rational basis review. Id. at 638, 638 n. 20, 89 S.Ct. 1322; see also Newton v. McCotter Motors, Inc., 475 So.2d 230, 234 n. 2 (Fla.1985) (Erlich, J., dissenting) (noting that, in Shapiro, “[t]he Supreme Court rejected] cost-savings alone as a justification for a classification,” even under rational basis review); WHS Realty Co. v. Town of Morristown, 323 N.J.Super. 553, 733 A.2d 1206, 1217 (Ct.App.Div.1999) (affirming trial court’s determination that town’s garbage collection scheme excluding multifamily dwellings of four or more units from free service “bore no rational relationship to any legitimate state interest”; citing Shapiro for the proposition that “[t]he savings of [municipal] costs cannot justify an otherwise invidious classification”).

The majority cites several cases for the proposition that “the actuarial soundness of state programs has been upheld as a legitimate state interest by several courts faced with equal protection claims.” Majority op. at 917. The only Florida case cited by the majority in this context is Loxahatchee River Environmental Control District v. School Board of Palm Beach County, 496 So.2d 930 (Fla. 4th DCA 1986), a significantly distinguishable district court of appeal decision that is in no way binding on this Court.

The statute at issue in Loxahatchee exempted school board construction from impact fees imposed by publicly owned utility providers but not those imposed by privately owned utility companies. Id. at 937. A publicly owned utility argued that the Legislature had thereby made a discriminatory classification that violated due process. Id. In rejecting this claim, the Fourth District Court of Appeal reasoned on the one hand that “[i]f publicly owned utilities are not perceived as sharing a class with privately owned ones, then there is no equal protection issue” because, under the subject statute, “publicly owned utilities are affected by the exemption in the same way.” Id. at 938. In contrast to “publicly owned utilities” being affected in the same way under the statute in Loxa-hatchee, “parents” are affected differently under the parental award provision in the present case depending upon whether they pursue a claim singly versus jointly.

The Fourth District in Loxahatchee reasoned on the other hand that,

[t]o the extent that publicly owned utilities are naturally in the same class as privately owned ones, but have been separately classified here for the purpose of the impact fee exemption, the legislature may have reasoned that although privately owned utilities frequently perform the same services as publicly owned ones, the former are franchised, and serve areas different from those served by the publicly owned ones. There is thus no competition between publicly owned and private utilities; hence no competitive advantage is given the private utilities by the fact they may collect impact fees from new public schools whereas the publicly owned utilities may not.

496 So.2d at 938. Again in contrast, parents pursuing a claim individually under the parental award provision at issue in the present case enjoy a distinct advantage over those proceeding jointly — namely, up to twice the award amount. I would therefore find Loxahatchee to be significantly distinguishable and conclude that the distinction at issue in the present case is impermissibly invidious for equal protection purposes.

NONECONOMIC DAMAGES

That the distinction at issue in the present case violates equal protection is further supported by our decision in St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla.2000), in which we considered the strikingly similar issue of whether the $250,000 noneconomic damages cap in the arbitration provisions of the Medical Malpractice Act (the Act) limited the aggregate recovery of all claimants versus the individual recovery of each claimant. This Court concluded that “interpreting] the noneconomic damages cap [in the Act] to apply to all claimants in the aggregate ... would create equal protection concerns.” Id. at 971.

The majority distinguishes the present case as involving not the Act, but rather the Plan, which it says in contrast “sets the parental award provision apart from the statutory limitation on fault-based damages at issue in St. Mary’s Hospital.” Majority op. at 919. I disagree as to the Plan’s parental award provision, which I find to the contrary must be intended to compensate for noneconomic damages suffered by individual parents.

Section 766.31(1), Florida Statutes (2010), provides in pertinent part:

Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury:
(a) Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel.
(b)l. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.
2. Death benefit for the infant in an amount of $10,000.
(c) Reasonable expenses incurred in connection with the filing of a claim under [the Plan], including reasonable attorney’s fees, which shall be subject to the approval and award of the administrative law judge.

Significantly, subsections 766.31 (l)(a) and (c) contemplate specific expenses related to caring for an injured child and pursuing a claim under the Plan, while subsection 766.31(l)(b)l. (the parental award provision directly at issue) is set apart from those subdivisions and contains no such specificity. See generally Kelso v. State, 961 So.2d 277, 282 (Fla.2007) (giving “independent meaning and effect to the words and structure selected” in construing statute). Moreover, section 766.314(9)(a), Florida Statutes (2010), provides that

[w]ithin 60 days after a claim is filed, the [Florida Birth-Related Neurological Injury Compensation Association (NICA) ] shall estimate the present value of the total cost of the claim, including the estimated amount to be paid to the claimant, the claimant’s attorney, the attorney’s fees of [NICA] incident to the claim, and any other expenses that are reasonably anticipated to be incurred by [NICA] in connection with the adjudication and payment of the claim. For purposes of this estimate, [NICA] should include the maximum benefits for noneconomic damages.

The Samples argue, and I agree, that the parental award provision is the only element of compensation under the Plan that could reasonably be referred to as “non-economic damages” under section 766.314(9)(a). See generally St. Mary’s Hosp., 769 So.2d at 967 (recognizing the “cardinal rule of statutory construction that a statute must be construed in its entirety and as a whole”). NICA does not offer an alternative, and I do not otherwise find one in the NICA statutes.

I accordingly disagree with the majority’s implication that our analysis in St. Mary’s Hospital is inapplicable. See Majority op. at 919-20. I would hold to the contrary that it is applicable and supports finding an equal protection violation in this case.

CONCLUSION

The majority’s equal protection holding is based in large part upon finding Loxa-hatchee applicable and St. Mary’s Hospital inapplicable to the present case. I would find just the opposite. Based on this and the other reasons expressed above, while I concur with the majority’s holding that the parental award provision unambiguously provides for only a single award of $100,000, I respectfully dissent from its holding that the provision does not violate equal protection. I would therefore answer the certified question in the affirmative and refrain from addressing the parties’ alternative constitutional arguments regarding vagueness and access to courts.

PARIENTE and QUINCE, JJ., concur.

      . My use of the terms "parental award provision” and "parent(s)” throughout this opinion includes legal guardians as contemplated under the statute.


source: Caselaw Access Project

author: CANADY, J. PERRY, J.,

license: Public Domain

text:
    CITY OF PALM BAY, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. SC11-830.
    Supreme Court of Florida.
    May 16, 2013.

      James David Stokes, City Attorney, Andrew Patrick Lannon, Palm Bay, FL, and Steven L. Brannock, Tampa, FL, for Petitioner.
    Matthew J. Conigliaro and Leah A. Sevi of Carlton Fields, P.A., St. Petersburg, FL, Michael K. Winston of Carlton Fields, P.A., West Palm Beach, FL, for Respondent.
    Mark Partick Barnebey, Scott Ellis Ru-dacille, and Kurt Eugene Lee of Kirk Pinkerton, P.A., Sarasota, FL, for Amicus Curiae City of Palmetto.
    Jamie Alan Cole and Susan Lanelle Tre-varthen of Weiss Serota Helfman Pastori-za Cole & Boniske, P.L., Fort Lauderdale, FL, Edward G. Guedes of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, FL, for Amicus Curiae Florida League of Cities.
    Erin Jane O’Leary, Catherine Dwyer Reischmann, William Edward Reischmann, Usher Larry Brown of Brown, Garganese, Weiss & D’Agresta, P.A., Orlando, FL, for Amicus Curiae City of Casselberry, Florida, City of Palm Coast, Florida, and City Winter Park, Florida.

      Heather M. Christman of Christman Law, P.L., Winter Haven, FL and Stephen Russell Senn of Peterson & Meyers, P.A., Lakeland, FL, for Amicus Curiae Peter and Laurie Pepe and Port Malabar Country Club, Inc.
    Alan Beaumont Fields, Tallahassee, Florida and Homer Duvall, III, St. Peters-burg, FL, for Amicus Curiae Florida Land Title Association.
    Virginia Bullerman Townes and Carrie Ann Wozniak of Akerman Senterfitt, Orlando, FL, for Amicus Curiae Florida Bankers Association.
   CANADY, J.

In this case we consider whether a municipal ordinance may validly establish su-perpriority status for municipal code enforcement liens. In City of Palm Bay v. Wells Fargo Bank, N.A., 57 So.3d 226 (Fla. 5th DCA 2011), the Fifth District Court of Appeal concluded that such an ordinance superpriority provision is invalid because it conflicts with a state statute and that the City’s lien accordingly did not have priority over the lien of Wells Fargo’s mortgage that was recorded before the City’s lien was recorded. Palm Bay sought review, and we accepted jurisdiction based on the Fifth District’s certification of the following question of great public importance:

Whether under Article VIII, section 2(b), Florida Constitution, section 166.021, Florida Statutes and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages?

City of Palm Bay v. Wells Fargo Bank, N.A., 67 So.3d 271, 271 (Fla. 5th DCA 2011) (mem.).

On appeal, the City argues that the ordinance superpriority provision is within the “broad home rule powers” of the City. Petitioner’s Brief on the Merits at 5, City of Palm Bay v. Wells Fargo Bank, N.A, 114 So.3d 924, 2013 WL 2096257 (Fla.2013). The City contends that because the Legislature has made certain exceptions to the general rules governing the priority of liens, municipalities have the power to likewise make exceptions. For the reasons we explain, we conclude that the Fifth District correctly decided that the ordinance superpriority provision is invalid. Accordingly, we answer the certified question in the. negative. Before explaining our conclusion, we will review the pertinent provisions of the Palm Bay ordinance, the constitutional and statutory provisions relevant to the City’s exercise of power, and the statutory framework governing the priority of interests based on recorded instruments.

I. BACKGROUND

City of Palm Bay Ordinance 97-07 provides for the operation of the City’s Code Enforcement Board and contains the following superpriority provision:

Liens created pursuant to a Board order and recorded in the public record shall remain liens coequal with the liens of all state[,] county!,] district!,] and municipal taxes, superior in dignity to all other liens!,] titles!,] and claims until paid, and shall bear interest annually at a rate not to exceed the legal rate allowed for such liens and maybe foreclosed pursuant to the procedures set forth in Florida Statutes, Chapter 173.

City of Palm Bay, Ordinance No. 97-07, § 1 (1997).

Chapter 162, Florida Statutes (2004), contains the Local Government Code Enforcement Boards Act. Section 162.03, Florida Statutes (2004), authorizes municipalities to establish by ordinance local code enforcement boards. Section 162.09(3), Florida Statutes (2004), provides that “[a] certified copy of [a code enforcement] order imposing a fíne, or a fíne plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator.” The Act contains no provision expressly authorizing municipalities to establish superpriority for such liens.

Article VIII, section 2(b), Florida Constitution, contains a general provision relating to the exercise of municipal powers: “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.” (Emphasis added). Section 166.021, Florida Statutes (2004), contains general provisions governing the exercise of municipal powers under the framework established in article VIII, section 2(b). Section 166.021(1) states: “As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.” Section 166.021(3) provides in pertinent part as follows:

The Legislature recognizes that pursuant to the grant of power set forth in section 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(c) Any subject expressly preempted to state or county government by the constitution or by general law....

The priority of interests in real estate under Florida law is generally determined by the operation of three statutes. Section 28.222(2), Florida Statutes (2004), requires the clerk of the circuit court to record instruments in the official records and to “keep a register in which he or she shall enter at the time of filing the filing number of each instrument filed for record, the date and hour of filing, the kind of instrument, and the names of the parties to the instrument.” Section 695.11, Florida Statutes (2004), provides that “[t]he sequence of [official register numbers required under section 28.222] shall determine the priority of recordation” so that “[a]n instrument bearing the lower number in the then-current series of numbers shall have priority over any instrument bearing a higher number in the same series.” The legal significance of priority of recordation comes into play in the context of the rule established in section 695.01(1), Florida Statutes (2004), which provides as follows: “No conveyance, transfer, or mortgage of real property, or of any interest therein ... shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law.”

The Legislature has, however, provided separately for the priority of certain liens over the priority established under chapter 695. For example, section 197.122(1), Florida Statutes (2004), provides that “[a]ll taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens.” Similarly, section 170.09, Florida Statutes (2004), provides that special assessment liens are “coequal with the lien of all state, county, district, and municipal taxes, superior in dignity to all other liens, titles, and claims, until paid.”

II. ANALYSIS

Based on the provisions of article VIII, section 2(b), Florida Constitution, and the related provisions in section 166.021, we have acknowledged that “[i]n Florida, a municipality is given broad authority to enact ordinances under its municipal home rule powers.” City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006). We have also stated that — as is recognized in section 166.021 — “a municipality may legislate concurrently with the Legislature on any subject which has not been expressly preempted to the State.” Hollywood, 934 So.2d at 1243. But we have never interpreted either the constitutional or statutory provisions relating to the legislative preemption of municipal home rule powers to require that the Legislature specifically state that the exercise of municipal power on a particular subject is precluded. Instead, we have held that “[t]he preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989). We have also recognized that where concurrent state and municipal regulation is permitted because the state has not preemptively occupied a regulatory field, “a municipality’s concurrent legislation must not conflict with state law.” Thomas v. State, 614 So.2d 468, 470 (Fla.1993).

The critical phrase of article VIII, section 2(b) — “except as otherwise provided by law” — establishes the constitutional superiority of the Legislature’s power over municipal power. Accordingly, “[mjunici-pal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas, 614 So.2d at 470. When a municipal “ordinance flies in the face of state law” — that is, cannot be reconciled with state law— the ordinance “cannot be sustained.” Barragan, 545 So.2d at 255. Such “conflict preemption” comes into play “where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute.” 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012).

Here, it is undisputed that the Palm Bay ordinance provision establishes a priority that is inconsistent with the priority established by the pertinent provisions of chapter 695. In those statutory provisions, the Legislature has created a general scheme for priority of rights with respect to interest in real property. Giving effect to the ordinance superpriority provision would allow a municipality to displace the policy judgment reflected in the Legislature’s enactment of the statutory provisions. And it would allow the municipality to destroy rights that the Legislature established by state law. A more direct conflict with a statute is hard to imagine. Nothing in the constitutional or statutory provisions relating to municipal home rule or in the Local Government Code Enforcement Boards Act provides any basis for such a municipal abrogation of a state statute. The conflict between the Palm Bay ordinance and state law is a sufficient ground for concluding that the ordinance superpriority provision is invalid.

We categorically reject the City’s argument that the legislative enactment of exceptions to a statutory scheme provides justification for municipalities to enact exceptions to the statutory scheme. No authority supports this argument. The power to create exceptions to a legislative scheme is the power to alter that legislative scheme. “Fundamental to the doctrine of preemption is the understanding that local governments lack the authority to craft their own exceptions to general state laws.” 5 McQuillin Mun. Corp. § 15:18 (3d ed. 2012). Although municipalities generally have “the power to enact legislation concerning any subject matter upon which the state Legislature may act,” § 166.021(3), Fla. Stat. (2004), in exercising their power within that scope municipalities are precluded from taking any action that conflicts with a state statute. In this context, concurrent power does not mean equal power.

III. CONCLUSION

The Fifth District correctly concluded that the superpriority provision of the Palm Bay ordinance is invalid because it conflicts with state law. We approve that determination and answer the certified question in the negative.

It is so ordered.

POLSTON, C.J., and LEWIS, QUINCE, and LABARGA, JJ., concur.

PERRY, J., dissents with an opinion, in which PARIENTE, J., concurs.

PERRY, J.,

dissenting.

The majority holds that the City of Palm Bay’s home rule authority does not provide it with the authority to enact an ordinance providing code enforcement liens superior priority over prior recorded mortgages. Because I disagree that the ordinance irreconcilably conflicts with the mechanical recording statute provided in section 162.09, Florida Statutes (2004), or that the Florida Legislature has expressed a scheme “so pervasive as to evidence an intent to preempt the particular area,” I would find that the city’s ordinance was properly enacted. Accordingly, I dissent.

The majority reasons that section 162.09(3) “contains no provision expressly authorizing municipalities to establish special priority for such liens.” Maj. op. at 927. However, this is not the appropriate test to determine whether a municipality has exceeded its powers. The City of Palm Bay does not require the Legislature’s express permission to act under its home rule powers. Section 166.021(1) states in relevant part that “municipalities ... may exercise any power for municipal purposes, except when expressly prohibited by law.” Further, section 166.021(3)(c) provides that the municipality has the power to enact legislation concerning any subject matter upon which the Legislature may act except “[a]ny subject expressly preempted to state or county government by the constitution or by general law....” (Emphasis added). Thus, it is not whether the Legislature has expressly authorized municipal power, but whether such power has been expressly prohibited. Here, there has been no express preemption that would prohibit the City’s action.

Because the language contained in sections 162.09, 695.11, and related provisions does not expressly conflict with the ordinance, the City was within its authority to enact the ordinance. The majority avoids this outcome by relying on a single line from this Court’s decision in Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989), stating, “[t]he preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Maj. op. at 928. The majority’s reliance on Barragan here is misguided and misleading.

Barragan concerned an ordinance that permitted the City to deduct workers’ compensation benefits from an employee’s pension benefits in contradiction to the provisions of section 440.21, Florida Statutes (1987). Because the workers’ compensation scheme outlined in chapter 440 explicitly applied to every employer and employee working in the state, the City’s ordinance was expressly preempted by the statute. See Barragan, 545 So.2d at 254 (citing § 440.03, Fla. Stat. (1987)). In Barragan, Chief Justice Ehrlich emphasized that, “The city should not be permitted to do indirectly that which it cannot do directly.” Id. at 255 (Ehrlich, C.J., concurring in result only). In contrast, here the mechanical recording statute does not provide an all-encompassing lien priority scheme. Clearly there is no express preemption of the subject matter concerning the City’s ordinance. Yet, the majority maintains that “the Palm Bay ordinance is invalid because it conflicts with state law.” Again, the majority applies the improper test.

Express preemption is not the same as implied preemption or conflict — this Court has previously distinguished between these concepts. See Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886, 888 (Fla.2010) (defining implied preemption as “when the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature” and conflict as “when two legislative enactments cannot coexist”); see also Phantom of Brevard Inc. v. Brevard Cnty., 3 So.3d 309, 314 (Fla.2008); City of Hollywood v. Mulligan, 934 So.2d 1238, 1243, 1246-47 (Fla.2006) (internal quotations omitted). Here, section 166.021 provides that the City may act except where expressly preempted, not impliedly preempted or in conflict. These are distinct tests that should not be conflated. However, no matter the test applied here, there is no preemption evident in the statutes, neither explicit nor implicit.

While the majority recognizes that municipalities can legislate concurrently with the Legislature, see Maj. op. at 928 (citing City of Hollywood, 934 So.2d at 1243), the majority nevertheless “categorically re-jeet[s] the City’s argument that the legislative enactment of exceptions to a statutory scheme provides justification for municipalities to enact exceptions to the statutory scheme.” Maj. op. at 929. To read the statute and ordinance as unable to coexist ignores that the Legislature has not previously regarded the mechanical recording statute as a pervasive scheme without exemptions. See § 170.09, Fla. Stat. (2004) (providing lien priority and superiority for non-home rule municipality special assessments); § 197.552, Fla. Stat. (2004) (providing superiority for tax deeds except to municipal liens); § 718.116(5)(a), Fla. Stat. (2004) (providing superior lien priority for condominium assessments); § 713.07(2), Fla. Stat. (2004) (providing lien priority for construction liens). Additionally, lien priority can be altered by contract. Likewise, courts have recognized liens with superior priority despite their inferior filing dates. In Gailey v. Robertson, 98 Fla. 176, 123 So. 692 (Fla.1929), this Court found that a “mortgagee has no greater vested right ... than the fee simple owner and the rights of both must yield alike to the sovereign power when exercised to impose proper and lawful taxes.” Id. at 179, 123 So. 692. The Court accordingly found that the mortgage held by Gailey was not prior in dignity to the lien claimed by the city of Winter Haven, despite its prior recording date. Id. at 177, 123 So. 692. In First Nationwide Mortg. Corp. v. Brantley, 851 So.2d 885 (Fla. 4th DCA 2003), the Fourth District found that a city lien was not superior to the mortgage because it “was not the result of municipal services, special assessments or any other type lien covered under section 23-68 of the City's Code of Ordinances.” Id. at 887.

I would find that the Legislature has therefore not expressed a pervasive scheme — the statutes on the issue are scattered and separately enacted. Because the Legislature has provided several exemptions to the “first in time” rule, the City may likewise legislate such a rule under its home rule authority. See Wyche v. State, 619 So.2d 231, 238 (Fla.1993) (“Although municipalities and the legislature may legislate concurrently in areas not expressly preempted to the state, a municipality’s concurrent legislation may not conflict with state law.”).

I would likewise find that there is nothing in section 695.11 that expressly preempts the City of Palm Bay’s ordinance. As described in Argent Mortgage Co. v. Wachovia Bank, N.A, 52 So.3d 796, 800 (Fla. 5th DCA 2010), section 695.11 is a “mechanism for determining the time at which an instrument was deemed to be recorded.” Because there is no express limitation by section 695.11, The City of Palm Bay had authority under section 166.021 to enact the ordinance. Accordingly, I dissent.

PARIENTE, J., concurs.

      . The Fifth District states that section 695.11 "codifies ... the common law rule of first in time, first in right.” Palm Bay, 57 So.3d at 227. Although it has no bearing on the preemption question at issue in this case, we note that this characterization of Florida law is misleading. The comment incorrectly leaves section 695.01(1) out of consideration and suggests that priority of recordation necessarily establishes priority of right. A thoughtful discussion of the operation of Florida law in determining priority of interests in real property is contained in Argent Mortgage Co., LLC v. Wachovia Bank N.A., 52 So.3d 796 (Fla. 5th DCA 2010); see also Van Eepoel Real Estate Co. v. Sarasota Milk Co., 100 Fla. 438, 129 So. 892 (1930).

        . Sarasota Alliance for Fair Elections Inc. v. Browning, 28 So.3d 880, 886, 888 (Fla.2010).


author: GRIFFIN, J.

text:
    Michael Robert EVERETT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1418.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    Rehearing Denied Dec. 2, 2011.
    Michael Robert Everett, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner seeks another appeal, alleging ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c). On April 17, 2008, Petitioner was found guilty of first-degree felony murder and burglary of a dwelling with a battery while armed with a deadly weapon. He was sentenced on the same day to life imprisonment for both the felony murder and the burglary convictions, both counts to run concurrently. A notice of appeal was filed and the judgment and sentence were affirmed. Everett v. State, 7 So.3d 544 (Fla. 5th DCA 2009).

Petitioner now raises four claims of ineffective appellate counsel; only one of which is meritorious. Count II of the two-count indictment charged burglary of a dwelling, a second-degree felony. See § 810.02(1) & (3), Fla. Stat. (2010). The charge asserted that Petitioner unlawfully entered or remained in a dwelling with the intent to commit either an assault, battery, or murder therein. The burglary count of the indictment did not allege that Petitioner committed an assault or a battery, and did not allege that Petitioner was armed with a deadly weapon, although the evidence was ample to support such a charge, and the jury was instructed as to these aggravating circumstances. The jury found Petitioner guilty of burglary of a dwelling with a battery while armed with a dangerous weapon. Petitioner was sentenced to life imprisonment in accordance with the jury verdict for the first-degree felony punishable by life. Petitioner correctly contends that he could not be convicted of the first-degree burglary after being charged only with second-degree burglary.

A response to the petition was ordered, and the State does not represent that the indictment was ever amended. The State argues waiver because trial counsel did not raise the issue. The State also weakly argues that the indictment’s allegations encompassed the aggravating factors of the burglary statute or, in the alternative, that there was merely a “scrivener’s error.”

It is fundamental error to convict a defendant of a felony that is not charged. See Keels v. State, 792 So.2d 1249 (Fla. 2d DCA 2001); see also Brown v. State, 41 So.3d 259 (Fla. 4th DCA 2010); Santin v. State, 977 So.2d 781 (Fla. 5th DCA 2008); Zwick v. State, 730 So.2d 759 (Fla. 5th DCA 1999). In this case, Petitioner was charged with a second-degree felony and then convicted and sentenced for a first-degree felony punishable by life, based on an erroneous verdict form and jury instructions. This was a fundamental error and appellate counsel was ineffective for failing to raise it.

We reverse the burglary conviction and vacate the sentence. We remand for correction of the judgment to classify the conviction as a second-degree felony and for resentencing.

PETITION GRANTED in part; DENIED in part; SENTENCE on Count II vacated and REMANDED.

SAWAYA and PALMER, JJ., concur.

      . See § 810.02(2)(a) & (b), Fla. Stat. (2010).


author: PER CURIAM.

text:
    Juan L. GARCIA, Appellant, v. STATE of Florida, Respondent.
    No. 5D11-1345.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Ricardo VEGA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-103.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    Ricardo Vega, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the motion for postconviction relief in case number 2005-CF-013731-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


author: TORPY, J.

text:
    Dean Kenneth ROCKMORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1898.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

Appellant challenges his conviction for robbery with a firearm, asserting that the trial court should have granted his motion for judgment of acquittal because he “abandoned” the stolen merchandise before he threatened a pursuing store employee with a firearm. Appellant also challenges the trial court’s modifications to his proffered special jury instruction. We affirm.

The robbery conviction arose from Appellant’s theft of clothing from a Wal-Mart store. A store employee confronted Appellant as he attempted to exit the store. Appellant fled with the merchandise, and the store employee pursued him. During the pursuit, the store employee grabbed Appellant’s jacket, causing him to drop some or all of the merchandise. The employee continued to pursue Appellant until Appellant reached his get-away car. Before entering the car, Appellant displayed a firearm that had been concealed in his waistband and warned the employee to stop the pursuit. At that point, the employee retreated, and Appellant escaped.

Appellant was apprehended by police and charged with robbery. He admitted stealing the merchandise, but denied that he had committed robbery because he claimed that he had not possessed a firearm. He asserted as an alternative defense to the robbery charge that even if he had displayed a firearm, he had abandoned the merchandise before the display. He argued that this defense entitled him to a judgment of acquittal or, at the very least, a jury instruction that he should be found not guilty if he “abandoned” the stolen property before he threatened force. We conclude that this case was a proper one for the jury to determine whether the threatened violence was used “in the course of taking,” as defined in the robbery statute. We also conclude that Appellant was not entitled to his proffered special instruction because it was an incorrect statement of the law, confusing, and was already covered in the standard instruction. One of the court’s modifications to the special instruction was not erroneous. The other was invited error and harmless error nevertheless.

We start our analysis with Royal v. State, 490 So.2d 44 (Fla.1986), because Royal sparked a statutory amendment to the robbery statute. See Rumph v. State, 544 So.2d 1150 (Fla. 5th DCA 1989) (intent of amendment to “supersede” Royal); State v. Baker, 540 So.2d 847 (Fla. 3d DCA 1989) (legislative intent in amending section 812.13 was to “repeal” rule in Royal). In Royal, when the defendants were confronted by a store detective, they pushed him, fled from the store, and attempted to escape in a vehicle with the detective and other store employees in hot pursuit. 490 So.2d at 45. After an employee attempted to grab the ignition key to prevent the defendants from escaping, one of the defendants punched him. Then, the other defendant pointed a gun at the employees, causing them to retreat. Our high court held that the defendants could not be convicted of robbery because the acts of pushing the detective, punching an employee, and displaying the firearm in a threatening manner did not constitute a taking “by force,” because the violence occurred “after the taking.” Id. at 45-46 (emphasis added).

In response to Royal, in 1987 the Legislature amended section 812.13(1), Florida Statutes, to change the definition of robbery from a taking by force (or threat) to a taking where force (or threatened force) was used “in the course of the taking.” Ch. 87-315, § 1, at 2052, Laws of Fla. (emphasis added). The amendment added a definition for the phrase “in the course of the taking,” to include acts that are either “prior to, contemporaneous with, or subsequent to the taking,” provided that the acts and the taking “constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (1987). The statute retained a definition of “in the course of committing the robbery” for purposes of applying statutory enhancements. § 812.13(3)(a), Fla. Stat. (1987). The revised statute provides in material part as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(3)(a) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.
(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

§ 812.18(1), (3), Fla. Stat. (1987).

The intent of this change was to expand the common law crime of robbery to include, among other circumstances, where the force is used after the taking, provided it is used during a “continuous series of acts or events.” Clearly, in a case like Royal, the Legislature intended the use of force or threatened force during flight to fall within the statutory definition of robbery. Messina v. State, 728 So.2d 818 (Fla. 1st DCA 1999), is analogous to Royal. There, the victim chased the defendant thief through a parking lot and sat on the hood of his car to prevent his escape with her stolen purse. The defendant started and stopped his car abruptly and then made a sharp turn, causing the victim to fall off the car and suffer injuries. Id. at 818. Our sister court concluded that the use of force presented a jury question as to whether it was part of a continuous event under the robbery statute. Id. at 819-20; see Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010) (attempt to knock victim off car used to escape was within continuous series of events). In Royal, Messina, and Thomas, the thieves retained possession of the stolen merchandise throughout the subsequent pursuit, arguably a fact that distinguishes this case.

On the other side of the coin are cases like Baker, 540 So.2d 847, and Simmons v. State, 551 So.2d 607 (Fla. 5th DCA 1989), wherein the courts held, as a matter of law, that the chain of events was broken by “abandonment” of the stolen property, precluding robbery convictions. In Baker, upon seeing store security personnel approaching, the defendant put down the stolen video recorder inside the shopping mall and began to flee. 540 So.2d at 848. During the ensuing chase, he used force to evade capture. In affirming the dismissal of the robbery charge, our sister court concluded that, because the defendant did not use force as part of a “‘continuous series of acts or events’ involved with taking the property,” the charge was properly dismissed. Id. (emphasis added). In dicta, however, the Baker court stated that “[t]he defendant would have to have been in continuous possession of the property during the escape and the subsequent flight or resisting of arrest in order for the act to fall within the amended statute.” Id.

Similarly, our Court in Simmons addressed a situation where the defendant discarded the merchandise before using force to resist capture. 551 So.2d at 608. There, store employees confronted the defendant outside a department store after observing her remove merchandise without paying for it. They escorted her back inside the store, where she removed the merchandise and threw it to the floor. When the employees instructed her to accompany them to the security office, the defendant forcibly resisted. This Court, citing Baker, reversed the robbery conviction because “the property [had been] abandoned before any force was employed.” Id.

Appellant urges that this case is like Baker and Simmons, and unlike Royal and its progeny, because he dropped the merchandise before he made the alleged threat. Even assuming for the sake of discussion that dropping merchandise when grabbed by a pursuing merchant is the same as “abandonment” — as that term was intended in Baker and Simmons, and assuming that the Baker dicta was a correct pronouncement of the law — a factual dispute at trial precluded a judgment of acquittal here. Although Appellant testified that he had discarded all of the stolen merchandise before he allegedly brandished the firearm, the employee testified that he had not.

Our conclusion that a factual issue was presented does not end our labor, however, because Appellant argues in the alternative that he was entitled to a special instruction consistent with his version of the facts and urges that his proffered instruction was a correct statement of the law under Baker and Simmons and should not have been modified by the trial court. Appellant’s argument and proposed jury charge presents the question of whether the “abandonment” of stolen goods by a thief who is being pursued is a sufficient break in the “continuous series of events” such that a robbery conviction cannot be sustained. Consistent with the dicta in Baker, Appellant contends that Baker and Simmons apply anytime an escaping thief discards or drops the ill-gotten-gains before employing force or threatened force to evade capture by someone in pursuit. We think Baker and Simmons can be distinguished.

Simmons can be distinguished because the defendant there had been apprehended and escorted by employees back inside the store. 551 So.2d at 608. This was an intervening event that interrupted the defendant’s volitional course, thereby negating the continuity requirement of the statute. Baker is also distinguishable. There, the property was discarded in the shopping mall before the ensuing flight began. 540 So.2d at 848. Arguably, the “taking” ended before the next act of flight began. Thus, the series of acts was not continuous because the defendant ceased the crime of theft before he began the flight. The dicta in Baker — that a fleeing thief must be in continuous possession of the stolen item(s) until the point of violence to constitute robbery — was unnecessary to the holding and in contravention of the plain language of the statute. Under this construction, if a fleeing thief drops the merchandise to retrieve a gun and shoot the pursuer, it is not robbery. We specifically reject the Baker dicta because it is repugnant with the plain and unambiguous language of the statute and legislative history outlining the reason for the statutory amendment.

Under the statutory definition of “in the course of taking,” there is no question that the violent act (or threat) necessary for a robbery conviction may occur subsequent to the taking. The more difficult question is when do the subsequent violent act and the taking “constitute a continuous series of acts or events.” A “series of acts or events” is simply a sequence of related acts or events. See Oxford Dictionaries, series, http://oxford dictionaries.com/definition/series?q=series (last visited Feb. 6, 2012) (defining “series” as “a number of events, objects, or people of similar or related kind coming one after another”). Section 812.18(3) in no way suggests that these sequential acts or events must be in furtherance of an effort to retain the stolen property, or, as the Baker court put it, “involved with taking property.” 540 So.2d at 848. Thus, flight upon detection, for example, is an “act” that is sequential to and related to the act of taking. Discarding the stolen goods would also be such an act. The further qualifier that these series of acts be “continuous” means only that the sequential acts are not interrupted.

Applying this statute to the facts in Royal illustrates what was intended. There the series of related acts were the taking, the push, the flight, the struggle at the car, the punch, the threat with the gun, and the escape by vehicle. 490 So.2d at 45. The possession of merchandise during these acts was not an “act,” any more than wearing a hat while walking is an act distinct from the act of walking. They were continuous acts because they happened one after the other without any significant temporal void. They were all related to the taking because the taking and the flight were part of the same episode. The escape is as much a part of the crime as is the taking itself. Whether the act of violence was motivated by a desire to retain the goods, avoid capture, or both, is of no moment. See Kearse v. State, 662 So.2d 677, 685 (Fla.1995) (robbery conviction proper even if taking and subsequent murder not motivated by desire to steal property but to escape apprehension). The emphasis should be on whether the entire chain of acts is a part of a continuous series of events. That is all the statute requires.

This interpretation is consistent with and bulwarked by other language in the statute and the legislative history for the amendment. The statute defines “in the course of committing the robbery” to expressly include the “flight” after a robbery or attempted robbery. § 812.13(3)(a), Fla. Stat. Although this phrase is tied to the sentencing enhancement aspect of the statute, it nevertheless evinces a legislative recognition that the actions of the thief during the flight are related to, and considered a part of, the underlying crime. Our interpretation is also consistent with a legislative staff analysis of the proposed amendment, which states that the purpose of the amendment is “to expand robbery to include force occurring in an attempt to take money or property, or in flight after the attempt or taking.” See Fla. H.R. Comm, on Robbery, HB 758 (1987) Staff Analysis 1 (final June 26, 1987) (on file with Comm.) (emphasis added). The emphasized language plainly connotes that force during flight constitutes robbery, even after a mere “attempt” to take property.

The State objected to Appellant’s proffered special instruction, arguing that it was already covered in the standard instruction. The trial judge gave the instruction with some modification. To establish entitlement to a special instruction, a defendant must show that: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing. Stephens v. State, 787 So.2d 747, 756-57 (Fla.2001). Here, the standard instruction was given. Because it tracks the language of the statute, including the elements of the crime and the pertinent definition, it was appropriate to give the instruction without a supplemental special instruction. State v. White, 891 So.2d 502, 502-03 (Fla.2004); State v. Hubbard, 751 So.2d 552, 558 (Fla.1999); City of Tampa v. Long, 638 So.2d 35, 39 (Fla.1994). It is not necessary that a special instruction be given when the standard instruction provides the legal framework for the attorneys to argue their theory, even when the proposed special instruction more specifically addresses a defense theory based on facts adduced at trial, See San Martin v. State, 705 So.2d 1337, 1349 (Fla.1997) (not necessary to advise jury of specific non-statutory mitigating circumstances; standard, general instruction sufficient).

More importantly, as we have explained, the proffered special instruction was not a correct statement of the law and was confusing at best. Thus, it was within the trial court’s discretion to deny the special instruction altogether. Instead, here, the trial court made two changes to the proffered instruction. The first change, the addition of the word “voluntary” to qualify “abandonment,” was not an abuse of discretion because “abandonment” contemplates a voluntary act. The other modification, although erroneous, was invited by the submission of an erroneous special instruction and was nonetheless harmless, given the inconsequential change to the proffered instruction and its redundancy with the standard instruction.

We acknowledge conflict with Peterson v. State, 24 So.3d 686, 690 (Fla. 2d DCA 2009). Although Peterson is in the Baker/Simmons category of cases and can be distinguished for the same reasons, we disagree with its conclusion regarding the necessity and propriety of the special instruction regarding “abandonment.”

AFFIRMED.

PALMER and EVANDER, JJ., concur.

      . See Fla. H.R. Comm. on Robbery, HB 758 (1987) Staff Analysis 1 (final June 26, 1987) (on file with Comm.) (stating that bill amends section 812.13 to expand robbery to include force occurring in attempt to take money or property, or in flight after an attempt or taking).

      . The use of the word "abandonment” in Baker and Simmons was inartful at best and led to the confusion here. "Abandonment” of property typically refers to the voluntary relinquishment of an owner’s right. State v. Kennon, 652 So.2d 396, 398 (Fla. 2d DCA 1995); see Meeks ex rel. Estate of Meeks v. Fla. Power & Light Co., 816 So.2d 1125, 1129 n. 4 (Fla. 5th DCA 2002) (abandonment is relinquishment of owner’s right). A thief cannot abandon property he does not own. The trial court was concerned with the distinction between "voluntary” abandonment and "involuntary” abandonment, a distinction the State argues is legally significant because both the statutory defense of "abandonment,” contained in section 777.04(5), Florida Statutes, and the common law defense of "abandonment” only apply to voluntary abandonment. See Carroll v. State, 680 So.2d 1065 (Fla. 3d DCA 1996) (only voluntary abandonment is a defense to certain crimes). Adding to the confusion, our Court has characterized Simmons as a case where the defendant "voluntarily abandoned” the merchandise. Santilli v. State, 570 So.2d 400 (Fla. 5th DCA 1990). We do not take Baker or Simmons to use the word "abandonment” in the technical sense as either the relinquishment of a right in property or as a defense to a crime based on the abandonment of the crime. Rather, we think these opinions intended "abandon” to mean the relinquishment of possession of the property. Based on the facts of those cases, it does appear that the courts contemplated a purposeful act, rather than an accidental or involuntary act. But whatever was meant by the use of the word "abandonment” in those decisions, the proper focus in all of these cases should not be whether the defendant "abandoned,” "discarded,” or "dropped” the property. The proper focus should be on whether the defendant’s actions were all part of a continuous series of acts or events.

      . We remain mindful that history such as this is only a factor in determining intent. See White v. State, 714 So.2d 440, 443 n. 5 (Fla.1998) (recognizing that staff analyses are not determinative of legislative intent, but are only "one touchstone of the collective legislative will” (quoting Sun Bank/South Fla., N.A.
        v. Baker, 632 So.2d 669, 671 (Fla. 4th DCA 1994))).

      . If a proffered instruction misstates the law or is otherwise clearly erroneous, a trial court's modification of it does not constitute reversible error. See Bass v. State, 58 Fla. 1, 50 So. 531, 533 (Fla.1909) (denying claim for relief based on court’s modification of requested special instruction because requested instruction was clearly erroneous); Young v. State, 24 Fla. 147, 3 So. 881, 881 (1888) (stating that modification that essentially changes the force of an instruction is error unless instruction not pertinent).


text:
    Audrey BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-870.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Audrey Brooks [“Brooks”] appeals her judgment and sentence for organized fraud in excess of fifty thousand dollars, entered after the trial court revoked her probation. She contends that the trial court erred by revoking her probation because there was insufficient evidence to support the trial court’s finding that she had the ability to pay restitution and willfully refused to do so. We agree and reverse.

On February 10, 2009, the State charged Brooks with one count of organized fraud of $50,000 or more in violation of section 817.034(4)(a)(l), Florida Statutes. Thereafter, Brooks entered a plea of guilty. The trial court withheld adjudication and placed Brooks on probation for a period of thirty years. As a special condition of the probation, the trial court ordered Brooks to pay $130,000 in restitution to Beta Max, Inc. c/o Tami Hamilton, to be paid at a minimum rate of $550 per month and a $10,000 payment within six months.

On July 1, 2010, the State filed an affidavit of violation of probation, stating in part that Brooks had failed to make restitution payments as directed by the trial court and that she was $1,100 in arrears. A hearing was held on October 7, 2010, after which the trial court entered an order dismissing the violation of probation, and reinstated Brooks’ probation with the same terms and conditions as previously ordered.

The State filed a second affidavit of violation of probation on November 29, 2010, stating:

Violation of Condition (b) of the Order of Probation, by failing to make restitution payments to the clerk of court as directed in accordance with the payment instructions of the court, and as grounds for belief that the offender violated her probation, Officer Ingram states the offender is ordered to pay $10,000[.]00 within six months from 5-14 — 10[.]

The violation report, filed on the same day, provides in part:

(1) HOW VIOLATION OCCURRED
On 5-14-10, the offender was sentenced to probation and ordered to make restitution payments at a rate of $550[.]00 per month with an additional $10,-000[.]00 to be paid within six months from her sentencing date through the Brevard County, Florida Clerk of Court[.]
On 5-19-10, the offender was instructed on her conditions of probation by her probation officer and did sign Court orders understanding her conditions concerning probation!.]
According to the Brevard County Clerk of Court website by using the offender’s case number, the offender has paid a total of $2,425[.]00 towards her restitution payments during the period of her probation!.]
The offender is unemployed at this time, no monthly income!.]
(2) OFFENDER’S STATEMENT
The offender informed the probation officer that she would try and get the money from her family members to make the $10,000[.]00 payment towards restitution!.]

On February 27, 2011, the trial court conducted a violation of probation hearing. At the hearing, Brooks and the State discussed the condition of probation under which Brooks was to make a $10,000 payment within six months:

Q. One of the conditions of that probation as you will recall was that you were to make a Ten Thousand Dollars payment to the Menyons (phonetic spelling) within six months of that plea date, do you recall that?
A. That is correct.
Q. And I think what’s important is that do you recall the Court asking you specifically about being able to do such a thing, make that Ten Thousand Dollar payment?
A. That is correct.
Q. And isn’t it true that you told the Court and your attorney at that time that is of record that, yes, you would make a Ten Thousand Dollar payment within six months?
A. That’s correct.
Q. And you haven’t done that, have you?
A. That’s correct.
Q. Now, the outstanding balance that you owe to the Menyons is One Hundred and Thirty Thousand Dollars less approximately Twenty-five Hundred Dollars that you have paid, is that fair?
A. That’s correct.

Upon further questioning, Brooks testified that she had been in school prior to her arrest for the violation of probation, and had recently obtained a commission-based position with the Orlando Sentinel. She said that, since the previous violation hearing, she had attempted to liquidate assets and had attempted to seek assistance from her family. When asked where the stolen money had gone, Brooks explained: “A lot of it was spent on myself, my children, bills, also had a car that was seized by the police department....” When asked to be more specific about what it is that she spent the stolen money on with respect to her children, Brooks said: “Food, clothing, shelter, things like that.”

Further, Brooks explained that she had intended to pay the restitution by getting a job. Brooks stated that while she had been in school, she had been employed with GSI Commerce in Melbourne, earning between $320 and $400 per week. She explained that she told the trial court that she could pay the $10,000 within six months because she had a job at the time.

On cross-examination, Brooks testified that she was not presently working, but was seeking employment, and she had three children living with her. She supported her family through SSI and child support, totaling $1226 monthly. Brooks testified that she had paid towards restitution, that she was trying to pay the required amount, and that she made a lump sum payment in October, which came in part from her daughter and in part from her student loan.

In support of violating Brooks’ probation, the prosecutor argued in part:

Judge, the ability to pay I believe is a duty that is incumbent upon that person to come forward and show she has— does not have that ability to pay and I don’t believe she’s met that burden by her testimony here today.
Here’s a Hundred and Sixty Thousand Dollars and I don’t believe there’s a person in this courtroom, Judge, that wonders how could you spend that kind of money and not have something left. It sounds absurd and as a consequence I find her testimony incredible and I would ask that you find that she has the ability to pay based on those circumstances.

On the other hand, Brooks’ counsel argued in part:

Your Honor, the State’s got a burden here of proving that she willfully and substantially violated her probation (inaudible) in this case evidently has some resources that she could hand over to probation to pay for the restitution. There’s no evidence at all she had resources. I know there was a bunch of money at some time, but the question is is there any money now, does she have access to. Nothing. I would argue that the State has not proven she willfully and substantially violated her probation.

The trial court found:

All right. The allegations — underlying allegation are that between 4/8 and 10/8, so six month period of time, the allegations were stealing a Hundred and Eighty Thousand Dollars, Hundred and Sixty, I’m not sure, ultimately it was stipulated to be a Hundred and Thirty Thousand I believe.
She was arrested December of '08. So, between April '08 when the thefts started to the end of '08 a Hundred and Thirty plus Thousand Dollars was disposed of. I frankly never believed her when she said that she doesn’t know where it went. I think she’s just decided she is going to try to hold on to it and suffer the consequences of holding on to it.
She told us that she had Ten Thousand, she could come up with Ten Thousand Dollars, nothing’s changed and that as well, I do find a willful and substantial violation.

At that point, Brooks’ counsel asked: “Has the Judge found that she has the resources but isn’t bringing it forward?” The trial court responded:

Yes, sir. I also find she’s not diligently sought employment which is not an allegation but had she done so she would additionally have the ability to pay, but primarily she stole a Hundred and Thirty to a Hundred and Eighty Thousand Dollars and she’s decide [sic] that she’s going to hold on to it, at least a major portion of it.

The trial court then revoked Brooks’ probation, adjudicated her guilty, and sentenced her to five years in the Department of Corrections, followed by twenty years of probation with the same conditions as previously imposed.

As recently as last year, the Florida Supreme Court addressed the problem of violation of probation for failure to pay restitution. Del Valle v. State, 80 So.3d 999 (Fla.2011). Section 948.06, Florida Statutes (2009), places the burden on the non-paying probationer to prove inability to pay by clear and convincing evidence. Most of the intermediate appellate courts had concluded, however, that the State is obliged to carry the initial burden of proving willful failure to pay. The Florida Supreme Court said:

These cases present two separate questions of law regarding probation revocation for failure to pay restitution: (1) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer’s ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011), which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional. Regarding the first issue, the underlying constitutional principle is that an indigent probationer should not be imprisoned based solely on inability to pay a monetary obligation. Based on our fidelity to this principle, we approve the holdings of all the district courts of appeal, except the Third District, that before a trial court may properly revoke probation and incarcerate a probationer for failure to pay, it must inquire into the probationer’s ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence.
As to the second issue, an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process. Accordingly, the State must present sufficient evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial court’s finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State’s evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional.

Del Valle, 80 So.3d at 1011. (footnote omitted).

In light of Del Valle, the trial court’s decision must be reversed. The State failed to present sufficient evidence to support the trial court’s finding that Brooks’ failure to make the $10,000 payment was willful. Brooks testified that she had spent all of the fraudulently-obtained money on food, gas, clothing, transportation, and rent. The trial court did not find Brooks credible with respect to her testimony about her expenditure of the stolen money, but the State did not present any evidence that Brooks held or had access to any of the money that she had stolen, or the assets that /she had purchased, or that these could not have been dissipated. We recognize that the burden placed on the State is hard because the facts are peculiarly within the knowledge of the probationer, but the State will have to expend its resources to discover the truth if it wishes to show that Brooks has income or retains assets that should be restored to the victims before Brooks’ probation can be violated based on her failure to pay restitution. We reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

TORPY and LAWSON, JJ, concur.