author: LEWIS, J. QUINCE, J.,

text:
    Robert B. LEFTWICH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. SC12-2669.
    Supreme Court of Florida.
    Sept. 18, 2014.

      Lindsay Morgen Saxe and Steven Douglas Knox of Quarles & Brady LLP, Tampa, FL, for Petitioner.
    Jennifer Alani Parker, General Counsel, and Barbara Debelius-Enemark, Assistant General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.
   LEWIS, J.

Petitioner Robert Leftwich seeks review of the decision of the First District Court of Appeal in Leftwich v. Florida Department of Corrections, 101 So.3d 404 (Fla. 1st DCA 2012), on the basis that the First District certified that its decision is in conflict with the decision of the Second District Court of Appeal in Downs v. Crosby, 874 So.2d 648 (Fla. 2d DCA 2004). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

In 1988, the Florida Legislature enacted the provisional credit statute to reduce overcrowding in the state prison system. See § 944.277(l)(g), Fla. Stat. (Supp.1988); see also Gomez v. Singletary, 733 So.2d 499, 500 (Fla.1998). Under the statute, qualified inmates could receive provisional credits applied to their sentence any time the prison population reached a certain threshold. § 944.277(l)(g), Fla. Stat. (Supp.1988). However, the statute delineated criteria which rendered certain inmates ineligible to receive provisional credits. Id. One factor that would render an inmate ineligible for provisional credits was if the inmate “is sentenced, or has previously been sentenced, under s. 775.084 [the habitual offender statute], or has been sentenced at any time in another jurisdiction as a habitual offender.” Id.

On February 10, 1989, Robert Leftwich committed a robbery and an aggravated battery with a weapon. He was sentenced on August 7, 1989, to two years’ incarceration for the robbery conviction and ten years’ incarceration for the aggravated battery conviction, with the sentences to run consecutively. Neither of these sentences was imposed under the habitual offender statute. However, on August 26, 1989, while incarcerated, Leftwich was found to be in possession of cannabis, and he was later convicted of inmate possession of contraband. Leftwich was sentenced under the habitual offender statute on September 4, 1990, to thirty years’ incarceration with a ten-year mandatory minimum. At that time, Leftwich had accumulated 410 days of provisional credits to be applied to his sentences for the robbery and aggravated battery convictions. The Florida Department of Corrections (DOC) determined that due to the habitual offender sentence, Leftwich was not eligible to receive further awards of provisional credits on the robbery or aggravated battery convictions. As a result, the provisional release date for Leftwich reflects only the 410 days of provisional credits that he acquired prior to his sentence as a habitual offender, and no provisional credits have been awarded since the habitual offender designation.

On February 22, 2011, Leftwich submitted a request to the DOC for an explanation of why he has received only 410 days of provisional credits. Leftwich was of the opinion that he was eligible for 1,080 days of provisional credits for the robbery and aggravated burglary sentences. The DOC responded that an inmate who has been sentenced as a habitual offender is no longer eligible to receive provisional credits on non-habitual offender sentences. After unsuccessfully seeking administrative relief, Leftwich filed a petition for writ of mandamus in the circuit court, which was denied, and then filed a petition for writ of certiorari in the First District. The First District held that after he was determined to be a habitual offender, Left-wich was not eligible to receive provisional credits on any sentence, even those imposed prior to the habitual offender sentence. Leftwich, 101 So.3d at 404-05. However, the district court certified conflict with Downs, in which the Second District held that under the version of the provisional credit statute in effect from 1988 through 1992, inmates who were eligible to receive provisional credits on a prior sentence, but who were later sentenced as a habitual offender, could continue to receive provisional credits on their earlier sentence. 874 So.2d at 650, 652. This review follows.

Analysis

Provisional Credit Statute

The provisional credit statute, as enacted in 1988, stated:

(1) Whenever the inmate population of the correctional system reaches 97.5 percent of lawful capacity as defined in s. 944.096, the Secretary of Corrections shall certify to the Governor that such condition exists. When the Governor acknowledges such condition in writing, the secretary may grant up to 60 days of provisional credits equally to each inmate who is earning incentive gain-time, except to an inmate who:
(a) Is serving a sentence which includes a mandatory minimum provision for a capital offense or drug trafficking offense and has not served the number of days equal to the mandatory minimum term less any jail-time credit awarded by the court;
(b) Is serving the mandatory minimum portion of a sentence enhanced under s. 775.087(2);
(c) Is convicted, or has been previously convicted, of committing or attempting to commit sexual battery, incest, or a lewd or indecent assault or act;
(d) Is convicted, or has been previously convicted, of committing or attempting to commit assault, aggravated assault, battery, or aggravated battery, and a sex act was attempted or completed during commission of the offense;
(e) Is convicted, or has been previously convicted, of committing or attempting to commit kidnapping, burglary, or murder, and the offense was committed with the intent to commit sexual battery;
(f) Is convicted, or has been previously convicted, of committing or attempting to commit false imprisonment upon a child under the age of 13 and, in the course of committing the offense, the inmate committed aggravated child abuse; sexual battery against the child; or a lewd, lascivious, or indecent assault or act upon or in the presence of the child; or
(g) Is sentenced, or has previously been sentenced, under s. 775.081, or has been sentenced at any time in another jurisdiction as a habitual offender.
(2) The secretary’s authority to grant provisional credits in increments not exceeding 60 days will continue until the inmate population of the correctional system reaches 97 percent of lawful capacity, at which time the authority granted to the secretary will cease, and the secretary shall notify the Governor in writing of the cessation of such authority.
(3) At such time as provisional credits are granted, the Department of Corrections shall establish a provisional release date for each eligible inmate incarcerated, which will be the tentative release date less any provisional credits granted.
(4) Any eligible inmate who is incarcerated on the effective date of an award of provisional credits shall receive such credits. Any inmate who is under any type of release supervision program of the department is not eligible for an award of provisional credits.

§ 944.277, Fla. Stat. (Supp.1988) (emphasis added).

The DOC interpreted the statute to render an inmate ineligible to receive further provisional credits on any sentence once that inmate received a habitual offender sentence. See generally Dugger v. Anderson, 593 So.2d 1134, 1134 (Fla. 1st DCA 1992). In 1992, the First District held that the language “is ... or has previously been sentenced” with respect to a sentence imposed pursuant to the Florida habitual offender statute contrasted with the language “at any time” used in reference to a habitual offender sentence imposed by another jurisdiction. Id. Based on this distinction, the district court concluded that the disqualifying language of the provisional credit statute did not extend to non-habitual offender sentences which were imposed prior to a Florida habitual offender sentence. Id. at 1135. Thus, the First District held that a sentence imposed pursuant to the Florida habitual offender statute did not render an inmate ineligible to receive provisional credits for a sentence that was imposed prior to being determined to be a habitual offender.

Shortly after the decision in Anderson, the Legislature amended the provisional credit statute to exclude from eligibility any inmate who “[i]s sentenced, or has previously been sentenced, or has been sentenced at any time under s. 775.084 [the habitual offender statute], or has been sentenced at any time in another jurisdiction as a habitual offender....” § 944.277(l)(g), Fla. Stat. (Supp.1992) (emphasis added). The amendment was enacted as a result of the decision in Anderson. See, e.g., Mamone v. Dean, 619 So.2d 36, 36 (Fla. 5th DCA 1993) (“After Anderson (and, indeed, because of it), the Florida Legislature remedied the language of section 944.277(l)(g), Florida Statutes, to show its clear intent that an inmate is precluded from receiving provisional credits once sentenced as a habitual offender.”); see also McBride v. Moore, 780 So.2d 221, 222 (Fla. 1st DCA 2001) (“As the court explained in Mámeme ..., the legislature actually amended section 944.277(l)(g) as a reaction to the Anderson decision_”).

Ex Post Facto Principles

Leftwich contends that Anderson entitles him to receive provisional credits on the sentences imposed prior to the date he received the habitual offender status, and the denial of provisional credits on these sentences based on the 1992 amendment violates the ex post facto clause. The ex post facto clause is violated by application of a penal law if the application: (1) is retrospective; and (2) disadvantages the offender affected by it. See Waldrup v. Dugger, 562 So.2d 687, 691 (Fla.1990). The ex post facto clause applies to gain time statutes, including those for incentive gain time, basic gain time, and overcrowding gain time. See Gomez, 733 So.2d at 504.

If retroactive application of a statutory amendment results in additional punishment for a defendant, it violates the ex post facto clause. See State v. Smith, 547 So.2d 613, 616 (Fla.1989) (superseded by statute). After an amendment has been enacted, judicial interpretations of the prior statute may be relevant to an ex post facto analysis. Id. This Court stated in Smith:

First, it is a function of the judiciary to declare what the law is. 10 Fla. Jur.2d, Constitutional Law, § 166. Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute. Instead, the nature and effect of the court decisions and the statutory amendment must be examined to determine what law may be applicable after the amendment. See, 13 Fla. Jur.2d, Courts and Judges, § 140.

Id. at 616-17 (quoting Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988)). Thus, where a statute is ambiguous at the time a crime is committed, and the Legislature subsequently enacts a clarifying amendment that would result in a longer prison sentence, retroactive application of the clarifying amendment runs afoul of the ex post facto clause. See State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001) (holding that a statutory amendment characterized by the State as a clarification could not be applied retroactively because the statute as written at the time of the crime was unclear, and retroactive application of the statute as amended would result in an increased period of incarceration).

At the same time, a statutory amendment may be relevant to a determination of the intent behind the previous statute. See Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985). This Court stated in Lowry that if the Legislature amends a statute shortly after a controversy arises with respect to the interpretation of the statute, then the amendment may be considered to be a legislative interpretation of the original statute rather than a substantive change to the statute. Id. at 1250. The defendant in Lowry entered into an agreement with the Parole and Probation Commission that provided for his release on parole on a specific date. Id. at 1248-49. Shortly before that date, the Attorney General issued an opinion on parole eligibility for prisoners who have received consecutive sentences. Id. at 1249 (citing 1985 Op. Att’y Gen. Fla. 85-11 at 28 (1985)). In the opinion, the Attorney General concluded that an inmate with consecutive sentences is not eligible for parole until he or she has begun to serve the consecutive sentence. Id. As a result, the commission withdrew its agreement with the defendant, and the defendant was not released on the previously agreed upon date. Id. The defendant filed a petition for writ of mandamus seeking to enforce the agreement. Id. During the litigation, legislation was pending that would clarify the manner in which presumptive parole release dates would be calculated for prisoners with consecutive sentences. Id. at 1249-50. Under the amended law, the defendant would be entitled to release. Id. at 1250. The legislation was signed into law two days before this Court rendered the decision in Lowry. Id. This Court examined both the prior legislation and the legislation as amended, and determined that the amended legislation expressed both the prior and continuing legislative intent. Id. Therefore, the Court held that the opinion issued by the Attorney General did not reflect legislative intent and held that the defendant was eligible for consideration for parole. Id. Thus, pursuant to Lowry and Smith, although subsequent legislation cannot be used to overturn prior court decisions with respect to a statute, the legislation can be used to clarify the intent behind the prior version of the statute.

Furthermore, the United States Supreme Court has held that the federal ex post facto clause generally does not apply to judicial precedent. See Marks v. U.S., 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“The Ex Post Facto Clause is a limitation upon the powers of the Legislature ... and does not of its own force apply to the Judicial Branch of government.”). Instead, retroactive application of precedent is governed by the due process clause, which requires that the retroactive application cannot result in an unforeseeable enlargement of the criminal statute. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

This Court applied Marks in Mayes v. Moore, 827 So.2d 967, 973 (Fla.2002), where two inmates challenged the retroactive application of State v. Lancaster, 731 So.2d 1227 (Fla.1998). In Lancaster, this Court held that a 1988 statute provided the DOC with the authority to cancel provisional credits or other overcrowding gain time acquired by an offender when the offender is returned to DOC custody after a violation of conditional release. 731 So.2d at 1232-33. The defendants in Mayes contended that because Lancaster was not decided until after their original commitment, cancellation of the overcrowding gain time they accrued prior to their release upon their return to DOC custody for violation of their conditional release would result in an ex post facto violation. Mayes, 827 So.2d at 973. Based on the decision of the Supreme Court in Marks, the Court looked to whether the decision in Lancaster was an unforeseeable enlargement of the statute and concluded that it was not. Mayes, 827 So.2d at 973. Significantly, this Court recognized that: (1) the DOC had previously considered administrative gain time to be forfeitable upon supervision revocation; (2) this Court had previously held that provisional credits were essentially the same as administrative gain time; and (3) the statutory authority to revoke overcrowding gain time existed prior to the decision in Lancaster. Id. In light of these facts, this Court held that there was no ex post facto violation in the retroactive application of Lancaster to the defendants. Id. at 974.

Cases That Have Addressed Application of the 1992 Amendment

After the 1992 amendment to the provisional credit statute was enacted, the First and Fifth District Courts of Appeal determined that retroactive application of the amendment would not result in an ex post facto violation. See Mamone, 619 So.2d at 36; McBride v. Moore, 780 So.2d 221, 222. In Mamone, the Fifth District stated that the Legislature amended the statute to reflect its clear intent that an inmate who has at any time received a habitual offender sentence was not eligible to receive provisional credits. 619 So.2d at 36. The district court additionally noted that in Dugger v. Rodrick, 584 So.2d 2 (Fla.1991), this Court held that the provisional credit statute did not involve substantive matters of punishment, but rather was an administrative procedural mechanism enacted to control prison overcrowding. Mamone, 619 So.2d at 36 (citing Rodrick, 584 So.2d at 2).

Likewise, in McBride, the First District held that the 1992 amendment was a clarification of the legislative intent behind the earlier version of the statute, and that changes to the statute would not result in an ex post facto violation. McBride, 780 So.2d at 222. The defendant in McBride was sentenced as a habitual offender while serving a non-habitual offender sentence. Id. He contended that pursuant to the First District’s decision in Anderson, he remained eligible to receive provisional credits on the non-habitual offender sentence because the habitual offender sentence was imposed after the non-habitual offender sentence. Id. The First District concluded that Anderson was inapplicable because the 1992 amendment was a legislative clarification of the original intent to exclude inmates sentenced as habitual offenders from eligibility for provisional credits, regardless of when the designation was imposed. Id. In addition, the district court relied on Mamone and Rodrick for the proposition that amendments to the provisional credit statute could not result in an ex post facto violation because the statute was not substantive in nature. Id. at 222-23 (citing Mamone, 619 So.2d at 36; Rodrick, 584 So.2d at 2).

However, subsequent to Mamone, but prior to McBride, the United States Supreme Court held that Florida’s provisional credit statute was subject to ex post facto analysis. See Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In Lynce, the Supreme Court reviewed whether the cancellation of previously awarded provisional credits for certain classes of offenders violated the ex post facto clause of the federal constitution. Id. at 435, 117 S.Ct. 891. The defendant in Lynce pled nolo contendere to a charge of attempted murder and was released from prison early based on his accumulation of various kinds of early release credits, including provisional credits. Id. at 435-36, 117 S.Ct. 891. Shortly after the defendant was released, the Attorney General of Florida issued an opinion that interpreted the 1992 amendment to the provisional credit statute as retroactively cancelling all provisional credits for inmates convicted of attempted murder. Id. at 436, 438-39, 117 S.Ct. 891. The defendant was returned to DOC custody, and he challenged the retroactive cancellation of his provisional credits based on the ex post facto clause. Id. at 436, 117 S.Ct. 891. The State contended that no ex post facto violation occurred because the credits were awarded as part of an administrative process implemented to reduce prison overcrowding. Id. at 439, 117 S.Ct. 891. However, the Supreme Court stated that the subjective motivation of the Legislature in enacting the statute was not the relevant inquiry for an ex post facto analysis. Id. at 442, 117 S.Ct. 891. Rather, courts must ask whether the new statute disadvantaged the defendant by increasing his or her term of incarceration. Id. Because the amendment to the statute resulted in the defendant spending more time in prison, the Supreme Court held that retroactive application of the 1992 amendment violated the ex post facto clause. Id. at 446-47, 117 S.Ct. 891.

As previously discussed, at the time of the decision in McBride, the Supreme Court had decided Lynce. Therefore, Dugger and Mamone were no longer good law, and the conclusion in McBride that the provisional credit statute was not substantive in nature and an amendment to the statute could not result in an ex post facto violation was error. However, this was not the sole basis for the holding in McBride. The First District concluded the decision as follows:

In summary, since the 1992 amendment merely clarified the intent of the legislature with regard to section 944.277(l)(g), the trial court correctly ruled that the statute has never distinguished between inmates who had habitual offender sentences, regardless of whether imposed before or after the original sentence. On this basis, we deny the petition for writ of certiorari.

780 So.2d at 223 (emphasis added). Thus, the determination that the amendment was a clarification of original legislative intent rather than a change in the law was an independent basis for the holding that a subsequent habitual offender designation rendered an inmate ineligible to receive provisional credits on a non-habitual sentence imposed prior to the habitual offender status being established.

The Second District reached the opposite conclusion in Downs. The defendant in Downs received two sentences for which he was eligible to receive provisional credits, but was subsequently sentenced for an unrelated conviction as a habitual offender. 874 So.2d at 650. The Second District recognized that in McBride, the First District held that halting future awards of provisional credits on non-habitual offender sentences did not result in an ex post facto violation, but concluded that the First District incorrectly relied upon Ma-mone because it was no longer good law. Id. at 652. The Second District then examined whether application of the legislative clarification would result in an ex post facto violation, and held that it did. Id. at 650-51. The Second District reached this conclusion on the basis that application of the 1992 amendment would result in a longer period of incarceration for the defendant than that required under the interpretation given to the prior version of the statute by the First District in Anderson. Id. at 650, 652.

This Case

The relevant time period for the determination of what rights Leftwich has with respect to provisional credits is the law in place at the time of his offenses, which occurred in 1989. See Winkler v. Moore, 831 So.2d 63, 66 (Fla.2002). The relevant question, therefore, is whether the 1989 statute rendered an inmate ineligible to receive provisional credits on a non-habitual offender sentence where he or she is later sentenced pursuant to the Florida habitual offender statute.

This case presents a question of statutory construction. Questions of statutory interpretation are reviewed de novo. See Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 78 (Fla.2012). Our purpose in construing a statutory provision is to give effect to legislative intent, which is the polestar that guides a statutory construction analysis. Larimore v. State, 2 So.3d 101, 106 (Fla.2008). All statutory provisions must be given their full effect by the courts, and related statutory provisions must be construed in harmony with one another. Id. (quoting Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007)).

The plain language of a statute is the primary method through which legislative intent may be discovered. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 210 (Fla.2012). When a statute is clear, courts will not resort to rules of statutory construction to determine legislative intent, but rather will give effect to the plain language of the statute. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). At the time that Leftwich committed the relevant crimes, the provisional credit statute provided:

Whenever the inmate population of the correctional system reaches 97.5 percent of lawful capacity ... the Secretary of Corrections shall certify to the Governor that such condition exists. When the Governor acknowledges such condition in writing, the secretary may grant up to 60 days of provisional credits equally to each inmate who is earning incentive gain-time, except to an inmate who ... [i]s sentenced, or has previously been sentenced under s. 775.084, or has been sentenced at any time in another jurisdiction as a habitual offender.

§ 944.277(l)(g), Fla. Stat. (Supp.1988). The plain language of the statute clearly expresses the legislative intent that all habitual offenders be precluded from acquiring provisional credits for any sentence.

Under the plain language of the statute, the authority to award provisional credits occurred only when the inmate population reached 97.5 percent of lawful capacity, at which time provisional credits could be awarded to eligible inmates. Id. Whether an inmate was eligible was subject to change over the course of each inmate’s sentence. For example, subsection (l)(b) provided that an inmate was ineligible to receive provisional credits if he or she “[i]s serving the mandatory minimum portion of a sentence enhanced under s. 775.087(2)[.]” § 944.277(l)(b), Fla. Stat. In other words, an inmate was ineligible while serving the mandatory minimum portion of a sentence, but would become eligible once the mandatory portion was completed. Thus, a determination of eligibility must be made at the time of the overcrowding, and eligibility may change during the course of a sentence. Should the inmate fall into any of the categories not authorized to receive provisional credits at the time of the eligibility determination, then he or she could not be awarded provisional credits during that certification period. Accordingly, the plain language of the statute directs that if an inmate is currently or has previously been sentenced as a habitual offender at the time the eligibility determination is made, he or she may not receive provisional credits. Thus, the intent of the Legislature was indubitably to prevent the early release of habitual offenders under the provisional credit system.

Moreover, any other interpretation of the statute would lead to an unreasonable result. See Burris, 875 So.2d at 410 (“[T]he statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.”). The interpretation given to the statute by the First District in Anderson — that an inmate sentenced as a habitual offender in Florida was eligible to receive provisional credits on an earlier non-habitual offender sentence, whereas an inmate sentenced as a habitual offender by another jurisdiction was not — is simply not reasonable. There is no less danger posed by the early release of an inmate sentenced under the Florida habitual offender statute than one sentenced under the habitual offender statute of another jurisdiction.

Additionally, the 1992 amendment demonstrates that the legislative intent behind the exclusion of habitual offenders from eligibility for provisional credits was to prevent all habitual offenders from earning credits toward early release, regardless of when the habitual offender status was established. This amendment excluded from provisional credit eligibility any inmate who “[i]s sentenced, or has previously been sentenced, or has been sentenced at any time under [the habitual offender statute], or has been sentenced at any time in another jurisdiction as a habitual offender[.]” § 944.277(l)(g), Fla. Stat. (Supp.1992). Because this amendment was enacted in reaction to the interpretation expressed in Anderson, it is probative of the prior and continuing legislative intent with regard to the eligibility of inmates for provisional credits. See Lowry, 473 So.2d at 1250. Thus, not only was Anderson a misreading of the plain language of the statute, the 1992 amendment demonstrates that it did not properly reflect legislative intent.

Because we determine that the plain language of the statute in place at the time Leftwich committed his crimes precluded him from future awards of provisional credits on any sentence upon the entry of a habitual offender sentence, and do not apply the 1992 amendment, the ex post facto clause is not implicated. See Marks, 430 U.S. at 191-92, 97 S.Ct. 990 (stating that the ex post facto clause limits the legislative and not the judicial branch, but the due process clause applies to protect against a judicial violation of the right to fair warning of what conduct will give rise to a criminal penalty). Further, we conclude that our interpretation of the statute to prohibit the award of provisional credits to any inmate who is later sentenced as a habitual offender does not constitute an unforeseeable enlargement of the statute. Rather, this interpretation gives effect to the plain meaning of the statute as written at the time that Leftwich committed his crimes and is consistent with legislative intent at the time the statute was enacted.

CONCLUSION

Based on the foregoing, we hold that section 944.277, Florida Statutes (Supp. 1988), renders an inmate ineligible to receive provisional credits on any sentence after the inmate has received a habitual offender sentence, even where the habitual offender sentence is imposed subsequent to a sentence that is otherwise eligible for provisional credits. Accordingly, we approve the decision of the First District in Leftwich and disapprove Downs.

It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and PERRY, JJ„ concur.

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

QUINCE, J.,

dissenting.

Because I do not conclude that the plain language of the statute in place at the time Leftwich committed his crimes precluded him from future awards of provisional credits, I respectfully dissent from the majority’s decision.

The plain language of section 944.277(l)(g), Florida Statutes (Supp.1988) does not clearly express that all habitual offenders are precluded from acquiring provisional credits because it differentiates between inmates who are sentenced as habitual offenders in another jurisdiction and inmates who receive habitual offender sentences in Florida. We have held that the “legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.” State v. Marks, 698 So.2d 533, 540-41 (Fla.1997) (quoting Dep’t of Profl Regulation v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984)). The language “[i]s sentenced, or has previously been sentenced” for inmates sentenced under the Florida habitual offender statute, compared to “or has been sentenced at any time in another jurisdiction” can be reasonably interpreted to create a narrow category of habitual offenders sentenced in Florida who may still earn provisional credits.

In addition, we should not imply language in the 1988 statute to conclude that Leftwich is precluded from being awarded provisional credits. The statute specifically uses the language “is sentenced, or has previously been sentenced” when referring to inmates sentenced in Florida and the language “or has been sentenced at any time” when referring to those sentenced in other jurisdictions. Therefore, we should not imply that “or has been sentenced at any time” applies to those inmates sentenced in Florida in order to conclude all habitual offenders are precluded from receiving credits. See State v. Hearns, 961 So.2d 211, 219 (Fla.2007) (“Under the canon of statutory construction expressio uni-us est exelusio alterius, the mention of one thing implies the exclusion of another.”).

Furthermore, the 1992 amendment is more than a mere clarification of the legislature’s original intent. Chapter 92-310, Laws of Florida, which amended section 944.277, included the following language in its preamble: “944.277, F.S.; expanding exceptions to eligibility for grants of provisional credits ...” Ch. 92-310, Laws of Fla. (emphasis added). This language supports the conclusion that the amendment expanded the exception to all habitual offenders, eliminating the narrow category of habitual offenders, which included Leftwich, who earned provisional credits under the statute. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“The preamble and language of [an] enactment readily reveal the legislature’s intent and its policy reasons.”).

This expansion of the exceptions contained in the original statute results in the 1992 amendment being applied retroactively to Leftwich, deeming him ineligible for the provisional credits. An amendment to a statute should not be applied retroactively if it would result in additional punishment for the defendant, thereby violating the ex post facto clause of the Florida Constitution. State v. Smith, 547 So.2d 613, 616 (Fla.1989); see also State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001). By precluding Leftwich from receiving the 670 days of provisional credit he alleged to have earned, the retroactive application of the amendment results in a longer incarceration and violates the ex post facto clause. Therefore, the statute in place at the time of his offense, the original version of section 944.277(l)(g), must be applied.

Due to the language in the 1988 statute being “susceptible of differing constructions,” one creating a narrow category of habitual offenders to earn provisional credits and one which categorically precludes all habitual offenders from earning provisional credits, the rule of lenity requires this Court to construe the 1988 statute most favorably to Leftwich. § 775.021(1), Fla. Stat. (1989). Since the statute must be construed to allow a narrow category of habitual offenders to earn provisional credits, Leftwich was eligible to receive future awards of provisional credit on any sentence prior to the entry of his habitual offender sentence.

I would therefore quash the decision of the First District below and approve the decision of the Second District in Downs v. Crosby, 874 So.2d 648 (Fla. 2d DCA 2004).

PARIENTE, J., concurs.

      . This Court later recognized that Lynce impliedly overruled the decision in Rodrick. See Winkler v. Moore, 831 So.2d 63, 65-66 (Fla.2002) ("In 1997, the United States Supreme Court ruled in Lynce ... that the State had violated the Ex Post Facto Clause when it retroactively canceled overcrowding gain time because such credits, like regular gain time, were subject to ex post facto analysis. The decision essentially overruled this Court’s previous decisions holding that overcrowding gain time was not subject to ex post facto analysis.” (citing Blankenship v. Dugger, 521 So.2d 1097 (Fla.1988); Rodrick, 584 So.2d at 2; Griffin v. Singletary, 638 So.2d 500 (Fla.1994))).


source: Caselaw Access Project

author: QUINCE, J. CANADY, J.,

license: Public Domain

text:
    William J. PLOTT, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-922.
    Supreme Court of Florida.
    Sept. 18, 2014.

      Robert Buschel of Buschel Gibbons, P.A., Fort Lauderdale, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert Jay Krauss, Bureau Chief, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

William Plott seeks review of the decision of the Second District Court of Appeal in Plott v. State, 86 So.3d 516 (Fla. 2d DCA 2012), on the ground that it expressly and directly conflicts with a decision of this Court in State v. Fleming, 61 So.3d 399 (Fla.2011), and the First District Court of Appeal in Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), approved on other grounds, 901 So.2d 837 (Fla.2005), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The question before us is whether a motion brought under Florida Rule of Criminal Procedure 3.800(a) is an appropriate vehicle to attack a defendant’s upward departure sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We conclude that a claim of error under Apprendi and Blakely is cognizable in a rule 3.800(a) motion. Accordingly, we quash the Second District’s decision in Plott and approve the First District’s decision in Hughes. We remand to the Second District for the application of a harmless error analysis under Galindez v. State, 955 So.2d 517 (Fla.2007), and, if it is determined not to be harmless, to remand the case for resen-tencing.

FACTS AND PROCEDURAL HISTORY

In November 1997, a jury convicted Plott of four counts of armed sexual battery, and the trial court imposed four life sentences pursuant to the 1995 sentencing guidelines. Plott, 86 So.3d at 517. The trial court’s judgment was affirmed on direct appeal. See Plott v. State, 731 So.2d 1285 (Fla. 2d DCA 1999) (table). In May 2005, Plott was resentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). At the resentencing hearing, the State requested an upward departure sentence of life imprisonment on the armed sexual battery convictions because the victim was treated in an unnecessarily cruel fashion.

Without empaneling a jury, the circuit court reimposed the four life sentences as upward departure sentences. In support of the upward departures, the circuit court made findings in open court while referring to specific portions of the trial testimony transcript:

[T]he defendant and his conduct and acts in this case established that the crimes were committed in an extraordinary cruel, egregious, vicious, and wicked manner; that the conduct went beyond that of ordinary sexual battery.
That particularly establishing the criteria under the Weekley [v. State, 584 So.2d 78 (Fla. 3d DCA 1991)] case, the Court finds that the defendant, after picking up the victim, showed her a gun and threatened her. At the first location he punched her in the face with his fist so hard that it knocked her out of the Jeep to the ground. He continued to hit her. I find that in trial testimony pages 38, 39, and 90.
In addition, he pressed his forearm to the throat where she could not breathe and was seeing stars; that is found at trial testimony page 40.
He committed extremely rough anal sex on her the first time; that’s found at trial testimony page 44. He then drove her to another area and ... had her commit oral sex upon him, in a rough and threatening manner; at trial testimony 45 to 49.
At the second location he again anally and vaginally raped her. He hit her in the head again, even though she had asked him to please not hurt her or hit her again. That’s in trial testimony pages 50 to 53.
After committing those sexual batteries, again he straddled her in the vehicle, yanked her head back, placed the gun in her mouth to the point where she was gagging; that’s found at trial testimony page 55 and 59. He in addition threatened her with a knife, at trial testimony page 88 and 89.
I find that in and of itself to be a sufficient basis for an upward departure and ask that the State attorney transcribe these findings and attach them to the sentencing guidelines.

Plott’s counsel “did not argue [at the re-sentencing proceeding] that the trial court erred by refusing to conduct a jury trial to determine the factual basis for the upward departure,” even though the issue of whether a jury was required was “hotly debated” at the time. Plott, 86 So.3d at 518. However, Plott’s counsel expressed to the circuit court that there is “recent case law on enhancement of penalties that the U.S. Supreme Court has [said that] it’s supposed to be a jury determination on certain issues.” The Second District affirmed Plott’s four life sentences that were imposed on resentencing. See Plott v. State, 940 So.2d 432 (Fla. 2d DCA 2006) (table).

In September 2010, Plott, pro se, filed the instant motion to correct illegal sentence under rule 3.800(a), claiming that under Apprendi and Blakely he was entitled to a jury trial at his resentencing for the determination of the factual grounds since it resulted in an upward departure sentence. Plott, 86 So.3d at 517. Plott asked the circuit court to vacate his sentence and resentence him to a valid guidelines sentence. Plott maintained that under the 1994 sentencing guidelines, the maximum sentence he could have received on resentencing was 22.06 years. Finding that Plott’s sentences were within their statutory máximums, the circuit court denied Plott’s claim and ultimately denied the rule 3.800(a) motion. M

Plott appealed the circuit court’s order denying his rule 3.800(a) motion. Id. The Second District found that the claim of Apprendi error was a procedural error in sentencing that could have been preserved and raised on direct appeal, and therefore, it was not a ground for relief under rule 3.800(a). Id. at 519. Because the error was not cognizable under rule 3.800(a), the Second District affirmed the circuit court’s denial of relief. Id.

ANALYSIS

The question before the Court is whether a rule 3.800(a) motion is a proper vehicle to attack an upward departure sentence — which was imposed at resentenc-ing — based on a claim of error under Ap-prendi and Blakely. Because this is a pure question of law, this Court’s review is de novo. Keck v. Eminisor, 104 So.3d 359, 366 (Fla.2012).

Florida Rule of Criminal Procedure 3.800(a) states in pertinent part:

(a) Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) [“Motion Before Appeal”] or during the pendency of a direct appeal.

Fla. R.Crim. P. 3.800(a). Rule 3.800 allows defendants to petition “the courts to correct sentencing errors that may be identified on the face of the record.” Williams v. State, 957 So.2d 600, 602 (Fla.2007). The intent of rule 3.800(a) is “to balance the need for finality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the requirements of law.” Carter v. State, 786 So.2d 1173,1176-78 (Fla.2001).

“Since 1968, our procedural rules have provided for the correction of illegal sentences.” Id. at 1176. An “illegal sentence” is undefined in rule 3.800. This Court has “generally defined an ‘illegal sentence’ as one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.” Williams, 957 So.2d at 602 (quoting Carter, 786 So.2d at 1181).

“[T]he definition of ‘illegal sentence’ as interpreted by case law has narrowed significantly since that term was used in the 1960s and 1970s.” Carter, 786 So.2d at 1176. In Davis v. State, 661 So.2d 1193 (Fla.1995), this Court defined an “illegal sentence” as “one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.” Id. at 1196. We later rejected the contention that Davis mandates that only those sentences that facially exceed the statutory máximums may be challenged as illegal under rule 3.800(a). State v. Mancino, 714 So.2d 429, 438 (Fla.1998). Instead, “[a] sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’ ” Id. In Hopping v. State, 708 So.2d 263 (Fla.1998), we found that the defendant’s sentence increased upon resentencing in violation of the double jeopardy clause. Id. at 265. We announced that “where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800.” Id. “[Ijmplicitly, if not expressly, [we] receded from Davis in Mancino and Hopping to the extent that Davis could be read to limit challenges under rule 3.800(a) to only those sentences that exceed the statutory maximum.” Carter, 786 So.2d at 1177.

The Holdings of Apprendi and Blakely

In 2000, the Supreme Court in Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In 2004, the Blakely Court held:

Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

542 U.S. at 303-04, 124 S.Ct. 2531 (citations omitted). Apprendi and Blakely “apply to all resentencing proceedings held after they issued.” Fleming, 61 So.3d at 405. A claim of error under Apprendi and Blakely is subject to a harmless error analysis. Galindez, 955 So.2d at 524.

The Conflict Issue

Plott filed a motion to correct illegal sentence pursuant to rule 3.800(a), requesting relief under Apprendi and Blakely. Plott, 86 So.3d at 517. Similarly, the appellant in Hughes raised a claim of Ap-prendi in his motion to correct illegal sentence under rule 3.800(a). 826 So.2d at 1071. In Hughes, the First District found that “rule 3.800(a) is an appropriate procedural vehicle for raising an Apprendi claim, since such a violation would produce a sentence in excess of constitutional and statutory máximums and would be apparent from the face of the record.” Id. at 1072 (emphasis added). This, of course, expressly and directly conflicts with the district court’s decision below which concluded that the claim of Apprendi error was not cognizable under rule 3.800(a). Plott, 86 So.3d at 519.

In contending that the Court does not have discretion to review Plott, the dissent argues that the “sole issue” in the First District’s decision in Hughes was whether Apprendi applied retroactively to final cases and that its statement regarding the propriety of using rule 3.800(a) for Ap-prendi claims was dicta. Dissent op. at 96. But in our review of the district court’s decision in Hughes, we noted that the district court “held, among other things, that Apprendi does not apply retroactively.” 901 So.2d at 839 (emphasis added). Before it concluded that Apprendi was not retroactive, the district court in Hughes necessarily decided the threshold question of whether Apprendi claims were permitted in a rule 3.800(a) motion. 826 So.2d at 1072. If it had decided that Apprendi claims could not be raised in a rule 3.800(a) motion, then there would have been no need for the district court to address the retroactivity question. See, e.g., United States v. Tosh, 141 F.Supp.2d 738, 742 (W.D.Ky.2001) affd, 330 F.3d 836 (6th Cir. 2003) (“[T]he Court concludes that Defendant may use Old Rule 35(a) to challenge the legality of his 1985 sentence.... The Court next faces the central issue: whether Apprendi ... can apply retroactively.”).

In resolving this conflict, we hold that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a). Because claims of error under Apprendi and Blakely are cognizable in a rule 3.800(a) motion, we quash the Second District’s decision in Plott and approve the First District’s decision in Hughes.

This Case

In the instant case, Plott was resen-tenced under Heggs in 2005. Thus, Ap-prendi and Blakely were applicable to his resentencing proceeding. Fleming, 61 So.3d at 405. The record reflects that at resentencing the circuit court imposed upward departure sentences without a jury determining the factual basis for the upward departure. Plott’s four life sentences were unconstitutionally enhanced under Apprendi and Blakely. We note that the resentencing scoresheet indicated that Plott was subject to a maximum prison term of 22.06 years. We conclude that the circuit court erred in denying Plott’s rule 3.800(a) motion.

CONCLUSION

In light of the foregoing, we quash the Second District’s decision in Plott and approve the First District’s decision in Hughes. We remand to the district court for the application of a harmless error analysis under Galindez, and, if it is determined not to be harmless, to remand the case for resentencing.

It is so ordered.

LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

CANADY, J., dissents with an opinion.

CANADY, J.,

dissenting.

This Court’s conflict jurisdiction under article V, section 3(b)(3) of the Florida Constitution requires that the decision on review “actually ‘expressly and directly1 conflict[ ]” with a decision from this Court or another district court. State v. Vickery, 961 So.2d 309, 312 (Fla.2007); see Reaves v. State, 485 So.2d 829, 830 (Fla.1986) (“Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision.”). That is, the courts must reach opposite holdings based on the same or closely similar controlling facts. Crossley v. State, 596 So.2d 447, 449 (Fla.1992) (“Because the court below in the instant case reached the opposite result on controlling facts which [were substantially] identical, ... we concluded that a conflict of decisions existed that warranted accepting jurisdiction.”). The holdings in Plott v. State, 86 So.3d 516 (Fla. 2d DCA 2012), and Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), do not satisfy this constitutional requirement for the exercise of this Court’s jurisdiction.

In Plott, the defendant was resentenced in a post-Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), de novo proceeding during which he did not object to the trial judge’s findings supporting the departure sentence imposed. 86 So.3d at 517. In addition, on direct appeal, he did not argue that the trial court erred by failing to empanel a jury to decide the departure factors. Id. at 518. However, after his new sentence was final, he filed a Florida Rule of Criminal Procedure 3.800(a) motion, alleging that the sentence was illegal under Ap-prendi and Blakely because a jury did not determine certain sentencing factors. Affirming the denial, the Second District Court held as follows: “Here the error was a procedural error in sentencing that could have been preserved and raised on direct appeal. Thus, it was not cognizable under rule 3.800(a).” Plott, 86 So.3d at 519. In so holding, the district court relied on this Court’s decision in McGregor v. State, 789 So.2d 976, 977 (Fla.2001), which held that an Apprendi error is procedural in nature and must be preserved for review.

The First District Court in Hughes resolved a wholly different legal issue. Hughes’s conviction and sentence were final before Apprendi issued. 826 So.2d at 1072. Unlike Plott, he was not resen-tenced post-Apprendi. Nevertheless in 2001, Hughes filed a rule 3.800(a) motion alleging that his sentence was illegal under Apprendi, which he argued applied retroactively to his pre-Apprendi sentence. Id. The First District “h[e]ld that the decision announced in Apprendi is not of sufficient magnitude to be fundamentally significant, and thus, does not warrant retroactive status.” 826 So.2d at 1075. Accordingly, the district court affirmed the trial court’s summary denial of Hughes’s motion but certified the question of Apprendi’s retro-activity to this Court. Id.

Plainly, the district courts did not address the same question of law based on the same controlling facts and did not reach contrary holdings. Whether an Ap-prendi claim that was waived during sentencing or resentencing may nevertheless be raised via rule 3.800(a) was not at issue in the First District’s Hughes opinion. The sole issue was whether Apprendi applied retroactively to final cases. The First District’s statement regarding the propriety of using rule 3.800(a) to raise unpreserved claims of Apprendi error is therefore dicta. The manner in which the court framed its statement concerning the availability of 3.800(a) relief — “We note initially....”— makes clear that the court’s statement is merely a passing observation and not a holding on an issue presented for decision. See Hughes, 826 So.2d at 1072.

In exercising this Court’s discretion to review Plott, the majority thus relies on the First District’s dicta in Hughes as a basis for implied conflict with Plott. This Court, however, previously made clear that implied conflict does not satisfy the constitutional requirement for express and direct conflict. Dep’t of Health & Rehab. Servs., 498 So.2d 888, 889 (Fla.1986) (stating that under the revised state constitution “inherent or so called ‘implied’ conflict may no longer serve as a basis for this Court’s jurisdiction”). The alleged conflict cases do not have similar controlling facts, and the courts did not reach opposite holdings on the same issue. Because this Court does not have discretion to review Plott, I dissent.

      . Plott was also sentenced to five years in prison on an aggravated assault with a firearm conviction. Plott v. State, 846 So.2d 610, 611 (Fla. 2d DCA 2003).

      . In Heggs, we held that the 1995 amendments to the 1994 sentencing guidelines were unconstitutional. Id. at 627.

      . Plott was again sentenced to five years’ imprisonment on the aggravated assault with a firearm conviction.

      . In Weekley, the Third District Court of Appeal found — as a valid reason for an upward departure sentence — that the actions on the part of the defendant were "so extraordinary, cruel, egregious, vicious, and wicked that they went beyond the ordinary sexual battery, kidnapping, or aggravated battery case.” Id. at 80.

      . The circuit court also rejected Plott’s argument — which is not raised in this Court — that his sentences were illegal because the court failed to attach written findings justifying the upward departures.

      . The resentencing hearing transcript was attached to the circuit court’s order.

      . We approved the district court's holding in Hughes that Apprendi does not apply retroactively. Hughes, 901 So.2d at 848. We decline Plott’s invitation to recede from our decision in Hughes.

      . We find that Plott failed to demonstrate that the district court’s decision below expressly and directly conflicts with our decision in Fleming, in which the latter did not involve rule 3.800(a). See Fleming, 61 So.3d at 401 ("During the pendency of the belated appeal. Fleming filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his new sentence violated Apprendi and Blakely").

      . Because of our resolution of this issue, it is unnecessary for the Court to determine whether Plott’s sentences constitute "manifest injustice.”


author: LEWIS, J.

text:
    The FLORIDA VIRTUAL SCHOOL, etc., Appellant, v. K12, INC., et al., Appellees.
    No. SC13-1934.
    Supreme Court of Florida.
    Sept. 18, 2014.
    Stephen Hart Luther and Ryan Thomas Santurri of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, FL, and Frank Charles Kruppenbacher, General Counsel, Florida Virtual School, Orlando, FL, for Appellant.
    Stephanie Leigh Carman of Hogan Lo-vells U.S. LLP, Miami, FL, and Steven P. Hollman and Catherine E. Stetson of Hogan Lovells U.S. LLP, Washington, DC, for Appellees.
   LEWIS, J.

This case is before the Court to answer a question under Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is essential in determining an action pending in that court and for which there appears to be no controlling Florida precedent. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In Florida, VirtualSchool v. K12, Inc., 735 F.3d 1271, 1275 (11th Cir.2013), the Eleventh Circuit certified the following question:

Does Florida VirtualSchool’s statutory authority to “acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein” necessarily include the authority to bring suit to protect those trademarks, or is that authority vested only in the Department of State?

Because the statute quoted by the Eleventh Circuit includes additional language that is relevant to our resolution of the issue presented, and that federal court specifically stated that our analysis is not limited, we rephrase the certified question as follows:

Does the Florida Virtual School’s statutory authority to “acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein,” and the designation of its board of trustees as a “body corporate with all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School,” necessarily include the authority to file an action to protect those trademarks?

For the reasons expressed below, we answer the question in the affirmative.

FACTS AND BACKGROUND INFORMATION

In the order dismissing the action filed by the Florida Virtual School against K12, Inc., and K12, Florida, LLC (collectively “K12”), the United States District Court for the Middle District of Florida provided a brief history of the school in question:

In 1997, Plaintiff [the Florida Virtual School] was founded under the name “Florida On-Line High School.” Plaintiff is an educational institution whose mission is to provide online courses to students throughout the United States and foreign countries. In June 2000, Plaintiff became an agency of the State of Florida pursuant to Section 228.082 of the Florida Statutes. In 2002, Section 228.082 of the Florida Statutes was amended and renumbered as Section 1002.37 of the Florida Statutes. At this time, Plaintiffs name was changed to “Florida VirtualSchool.”

Fla. VirtualSchool v. K12, Inc., No. 6:11— cv-831-Orl-31KRS, 2012 WL 2920998, at *1 (M.D.Fla. July 16, 2012).

The opinion of the Eleventh Circuit provides the relevant facts of the action filed by the Florida Virtual School against K12:

Florida VirtualSchool was “established for the development and delivery of online and distance learning education.” Fla. Stat. § 1002.37. By January of 2002, it was using the marks “FLVS” and “FLORIDA VIRTUAL-SCHOOL” in connection with its online education program, marks which it registered with the United States Patent and Trademark Office. In 2003, the State of Florida began a pilot program that allowed private companies to compete with Florida VirtualSchool and serve a limited number of students. K12 — a national online education provider — was part of that program.
Florida VirtualSchool alleges that K12 infringed on its trademarks by causing actual market confusion in a variety of ways. First, K12 adopted the name “Florida Virtual Academy” and “FLVA” for its services in Florida. And, after the pilot program became permanent, it also began using the name “Florida Virtual Program” and “FLVP.” Second, K12 has paid for a sponsored listing on http://www.flvs.com — a website owned by Name Administration, Inc. — to divert customers away from Florida Virtual-School’s website (http://www.flvs.net). Third, the website for K12’s Florida Virtual Program is similar in both design and color scheme to the website for Florida VirtualSchool.
On May 18, 2011, Florida Virtual-School sued K12 for trademark infringement under both the Lanham Act, see 15 U.S.C. § 1051 et seq., and Florida common law. K12 filed a motion for summary judgment or, alternatively, to dismiss for lack of standing.

Fla. VirtualSchool, 735 F.3d at 1272.

K12 asserted that the Florida Virtual School had no standing because the authority to file an action with regard to the trademarks was vested exclusively in the Florida Department of State (DOS). In support of this contention, K12 relied upon language in the Florida Virtual School’s enabling statute which provides that all school trademarks are owned by the State. § 1002.37(2)(c), Fla. Stat. (2013). K12 noted that section 286.021, Florida Statutes (2013), grants to, and vests in, the DOS “[t]he legal title and every right, interest, claim or demand of any kind in and to any patent, trademark or copyright” that is owned or held by the State. K12 also referenced section 286.031, Florida Statutes (2013), which authorizes the DOS to “secure letters patent, copyright and trademark on any invention or otherwise, and ... to take any and all action necessary, including legal actions, to protect the same against improper or unlawful use or infringement.” On July 16, 2012, the district court held that the Florida Virtual School lacked standing to file the present action and dismissed it without prejudice. Fla. VirtualSchool, 2012 WL 2920998, at *4.

On appeal, the Eleventh Circuit concluded that this matter involves an issue of first impression, and that the parties had presented reasonable arguments with regard to whether the Florida Virtual School possessed standing to file an action to protect the trademarks. Fla. VirtualSchool, 735 F.3d at 1273-74. The Eleventh Circuit concluded that this case “affects the respective rights of various Florida agencies and departments with respect to intellectual property” and certified a question for determination under Florida law. Id. at 1275.

ANALYSIS

Relevant Statutes and Standard of Review

An agency created by statute does not possess any inherent powers. Rather, the agency is limited to the powers that have been granted, either expressly or by necessary implication, by the statute that created the agency. St. Regis Paper Co. v. State, 237 So.2d 797, 799 (Fla. 1st DCA 1970). The statutes that pertain to the issue here provide, in relevant part:

286.021. Department of State to hold title to patents, trademarks, copyrights, etc.
The legal title and every right, interest, claim or demand of any kind in and to any patent, trademark or copyright, or application for the same, now owned or held, or as may hereafter be acquired, owned and held by the state, or any of its boards, commissions or agencies, is hereby granted to and vested in the Department of State for the use and benefit of the state; and no person, firm or corporation shall be entitled to use the same without the written consent of said Department of State.

§ 286.021, Fla. Stat. (2013).

286.031. Authority of Department of State in connection with patents, trademarks, copyrights, etc.
The Department of State is authorized to do and perform any and all things necessary to secure letters patent, copyright and trademark on any invention or otherwise, and to enforce the rights of the state therein; to license, lease, assign, or otherwise give written consent to any person, firm or corporation for the manufacture or use thereof, on a royalty basis, or for such other consideration as • said department shall deem proper; to take any and all action necessary, including legal actions, to protect the same against improper or unlawful use or infringement, and to enforce the collection of any sums due the state and said department for the manufacture or use thereof by any other party; to sell any of the same and to execute any and all instruments on behalf of the state necessary to consummate any such sale; and to do any and all other acts necessary and proper for the execution of powers and duties herein conferred upon said department for the benefit of the state.

§ 286.031, Fla. Stat. (2013).

1002.37. The Florida Virtual School
(2) The Florida Virtual School shall be governed by a board of trustees comprised of seven members appointed by the Governor to 4-year staggered terms. The board of trustees shall be a public agency entitled to sovereign immunity pursuant to s. 768.28, and board members shall be public officers who shall bear fiduciary responsibility for the Florida Virtual School. The board of trustees shall have the following powers and duties:
(b) The board of trustees shall be responsible for the Florida Virtual School’s development of a state-of-the-art technology-based education delivery system that is cost-effective, educationally sound, marketable, and capable of sustaining a self-sufficient delivery system through the Florida Education Finance Program.
(c) The board of trustees shall aggressively seek avenues to generate revenue to support its future endeavors, and shall enter into agreements with distance learning providers. The board of trustees may acquire, enjoy, use, and dispose of patents, copyrights, and trademarks and any licenses and other rights or interests thereunder or therein. Ownership of all such patents, copyrights, trademarks, licenses, and rights or interests thereunder or therein shall vest in the state, with the board of trustees having full right of use and full right to retain the revenues derived therefrom....
.... The board of trustees shall be a body corporate with all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School.

§ 1002.37(2), Fla. Stat. (2013).

Each statute addresses trademarks that are owned by the State. However, that does not end the analysis. The enabling statute for the Florida Virtual School and the statutes under which the DOS operates present a tension with regard to the scope of authority granted to the school. For example, sections 286.021 and 286.031 provide that the DOS is authorized to do and perform any and all things necessary to generally secure letters patent, copyright and trademark on any invention or otherwise, and trademarks generally owned by the State may not be used by a corporation without the written consent of the DOS. However, section 1002.37 specifically establishes a board of trustees to govern the Florida Virtual School, designates the board as “a body corporate,” and further specifically authorizes the board to acquire, enjoy, and use trademarks “and any licenses and other rights or interests thereunder or therein.” § 1002.37(2), Fla. Stat. Nothing in section 1002.37 requires the Florida Virtual School to obtain written consent from the DOS before enjoying or using a school trademark or any rights or interests therein.

Additionally, section 286.031 provides that the DOS is generally authorized to sell trademarks. However, section 1002.37 provides that the Florida Virtual School board of trustees may “dispose of’ trademarks. § 1002.37(2)(c), Fla. Stat. Section 286.031 provides that the DOS is entitled to “license, lease, assign, or otherwise give written consent” to entities to use the trademarks “on a royalty basis, or for such other consideration as said department shall deem proper,” and also to “enforce the collection of any sums due ... for the manufacture or use thereof by any other party.” § 286.031, Fla. Stat. Despite this general language, section 1002.37 provides that the Florida Virtual School board of trustees “shall enter into agreements with distance learning providers” and is required to “aggressively seek avenues to generate revenue to support its future endeavors.” § 1002.37(2)(c), Fla. Stat. This subsection also specifically provides that the board has the “full right of use and full right to retain the revenues derived” from the trademarks. Id.

The overlapping language with regard to the respective rights and duties of the Florida Virtual School and the DOS creates a need to interpret the extent of the relationship and powers involved. Specifically at issue is the field of operation for the school with respect to the trademarks it acquires on behalf of the State. Accordingly, it is necessary to apply principles of statutory construction to determine whether the Florida Statutes provide the Florida Virtual School a basis for the authority to file actions for infringement of the school’s trademarks. See Polite v. State, 973 So.2d 1107, 1111 (Fla.2007) (“As with all cases of statutory construction, it is the Court’s purpose to effectuate legislative intent.”).

Principles of Statutory Construction

This Court has repeatedly stated that legislative intent is the polestar that guides a statutory construction analysis. See, e.g., Capone v. Philip Morris USA, Inc., 116 So.3d 363, 376 (Fla.2013) (quoting Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003)). Further:

To discern legislative intent, a court must look first and foremost at the actual language used in the statute. Moreover, a “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)).

Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (citation omitted). When reconciling statutes that may appear to conflict, the rules of statutory construction provide that a specific statute will control over a general statute, see State v. J.M., 824 So.2d 105, 112 (Fla.2002), and a more recently enacted statute will control over older statutes. See Palm Bch. Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000); see also ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc., 504 F.3d 1208, 1210 (11th Cir.2007). With regard to the latter rule, this Court has explained “[t]he more recently enacted provision may be viewed as the clearest and most recent expression of legislative intent.” Harris, 772 So.2d at 1287.

The Plain Language of Section 1002.37

The plain language of section 1002.37(2) provides that the Florida Virtual School’s board of trustees “shall be a body corporate with all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School.” (Emphasis supplied.) The designation of the board as a body corporate is without qualification or limitation. While the Florida Virtual School’s enabling statute does not define the term “body corporate,” Black’s Law Dictionary equates a “body corporate” with a corporation. Black’s Law Dictionary 198 (9th ed. 2009). Further, the Florida Legislature in the K-20 Education Code of the Florida Statutes has equated a “body corporate” with a corporation. See § 1001.72(1), Fla. Stat. (2013) (titled “University boards of trustees; boards to constitute a corporation ” and providing that “[e]ach board of trustees shall be a public body corporate ... with all the powers of a body corporate.” (emphasis supplied)).

The authority to file legal actions is the first enumerated power granted to corporations by the Florida Statutes. See § 607.0302, Fla. Stat. (2013) (“Unless its articles of incorporation provide otherwise, every corporation ... has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power: (1) To sue and be sued, complain, and defend in its corporate name.”). This power is also granted to non-profit corporations. See § 617.0302, Fla. Stat. (2013) (“Every corporation not for profit organized under this chapter, unless otherwise provided in its articles of incorporation or bylaws, shall have power to: ... (2) Sue and be sued and appear and defend in all actions and proceedings in its corporate name to the same extent as a natural person.”).

Further, a number of statutes that grant an entity all the powers of a body corporate without limitation also provide an illustrative list of powers that the grant entails, and the ability to file legal actions is routinely included in that list. See, e.g., § 215.56005(2)(c), Fla. Stat. (2013) (the Tobacco Settlement Financing Corporation “shall have all the powers of a corporate body under the laws of this state, including, but not limited to, the powers of corporations under chapter 617, to the extent not inconsistent with or restricted by the provisions of this section, including, but not limited to, the power to: ... 2. Sue and be sued.”); § 374.983(1), Fla. Stat. (2013) (the governing body of the Florida Inland Navigation District “shall have all powers of a body corporate, including the power to sue and be sued as a corporation, in its name, and in any court having jurisdiction.”); § 388.161(2), Fla. Stat. (2013) (the governing body of a mosquito control district “shall have all the powers of a body corporate, including the power to sue and be sued as a corporation in said name in any court.”); § 1001.63, Fla. Stat. (2013) (the board of trustees of a Florida College System institution “is constituted a body corporate ... with all the powers and duties of a body corporate, including the power ... to sue or be sued.”).

Although section 1002.37 does not attempt to include an illustrative list, we conclude that the absence of such a list does not deprive the Florida Virtual School of the ability to initiate a legal action. The board of trustees constitutes a corporation by virtue of the body corporate language utilized in the enabling statute. As previously discussed, a basic power of a corporation under Florida law is to file legal actions. See generally First Nat. Bank of Gainesville v. Bd. of Pub. Instruction for Lafayette Cnty., 93 Fla. 182, 111 So. 521, 524 (1927) (“The capacity of suit is one of the essential and ordinary incidents to a corporation.”); see also §§ 607.0302(1), 617.0302(2), Fla. Stat. Thus, we conclude that the “all the powers of a body corporate” language in section 1002.37(2) authorizes the school to initiate litigation. Further, because this grant of power is without limitation, we hold that the Florida Virtual School is authorized to file legal actions to protect the trademarks that it acquires on behalf of the State.

Moreover, the enabling statute clearly grants the board of trustees “such authority as is needed for the proper operation and improvement of the Florida Virtual School.” § 1002.37(2), Fla. Stat. The school, through its board of trustees, clearly and expressly has the authority to acquire, use, and enjoy trademarks, see id. at (2)(c), and the protection of those trademarks from infringement or improper use is necessary to facilitate the operation and continued improvement of the school. If third parties could wrongfully appropriate the Florida Virtual School trademarks without repercussions, the school would lose customers, contracts, and revenue, and its operation would be significantly compromised. Instead, the broad and unqualified language in section 1002.37(2) supports our conclusion that the Legislature intended to give the Florida Virtual School the authority to file legal actions to protect school trademarks against infringement. To interpret the “body corporate” and the “such authority” language in this manner both gives meaning to each clause in section 1002.37(2) and harmonizes the statute by ensuring that the Florida Virtual School has the ability to protect its operation and continue its improvement through enforcement of its trademark rights. See Larimore, 2 So.3d at 106.

Furthermore, when viewed in the historical context, it is logical and consistent to conclude that the Legislature chose to grant broad powers to the school. When the Florida Virtual School was designated as a public agency in 2000 (under the name “Florida On-Line High School”), ch.2000-224, § 1, Laws of Fla., the board of trustees was charged with the development and delivery of a relatively new form of education — online and distance learning. The enabling statute currently provides: “The board of trustees shall be responsible for the Florida Virtual School’s development of a state-of-the-art technology-based education delivery system that is cost-effective, educationally sound, marketable, and capable of sustaining a self-sufficient delivery system through the Florida Education Finance Program.” § 1002.37(2)(b), Fla. Stat. (emphasis supplied). Thus, the Florida Legislature recognizes that the board of trustees for the school continues to be involved in the implementation of a cutting-edge, online educational program.

The Legislature reasonably could have concluded that the trustees would possess a level of expertise beyond that of the DOS with respect to the development of the technology for the Florida Virtual School. Thus, the board of trustees would be better suited to monitor the use of this State-owned intellectual property and safeguard it against infringement. Moreover, because section 1002.37 does not require the Florida Virtual School to notify the DOS whenever it secures a trademark, copyright, or patent (as it clearly has the right and power to do), it is uncertain as to how the DOS could continually monitor school intellectual property for possible infringement. The lack of a notification requirement reflects a determination by the Legislature that the Florida Virtual School would have a degree of independence from the DOS with respect to intellectual property acquired by the school.

Finally, although the enabling statute expressly and reasonably provides that the trademarks acquired by the Florida Virtual School are owned by the State, and section 286.021 provides that legal title to property owned by the State vests in the DOS, the trustees of the Florida Virtual School have the clear, express authority to “acquire, enjoy, use, and dispose of patents, copyrights, and trademarks and any licenses and other rights or interests thereunder or therein.” § 1002.37(2)(c), Fla. Stat. We conclude that where intellectual property rights have been granted to a State agency by statute, such as the Florida Virtual School, its ability to exercise those rights would be meaningless if the agency holding those rights could not also protect the intellectual property from infringement. Accordingly, we hold that the legislative grant of the rights in section 1002.37(2) to the trustees of the Florida Virtual School necessarily authorizes the school to file actions to protect those rights and the intellectual property acquired by the school.

The Specific, Later-Enacted Statute

The other rules of statutory construction also support our conclusion that the Florida Virtual School possesses standing under its enabling statute to file a trademark infringement action. Section 286.031 generally governs trademarks that are held or owned by the State, and authorizes the DOS to protect those trademarks against “improper or unlawful use or infringement.” § 286.031, Fla. Stat.; see also Op. Att’y Gen. Fla.2000-13, at *2 (2000) (“[Ejections 286.021 and 286.031, Florida Statutes, vest general authority in the Department of State ... to apply for, hold and enforce legal title to trademarks, patents, and copyrights on behalf of the State of Florida.” (emphasis supplied)). However, section 1002.37 specifically authorizes the Florida Virtual School to acquire, use, enjoy, and dispose of the trademarks it has acquired. The legislative grant to the board of trustees of “all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School” necessarily incorporates the ability to protect the trademarks that the school has acquired on behalf of the State and continues to use and enjoy. § 1002.37(2), Fla. Stat. Therefore, section 1002.37 controls over the general DOS statutes and creates an exception to the general rule that only the DOS is authorized to protect State-owned trademarks against unlawful use or infringement. See J.M., 824 So.2d at 112; see also Op. Att’y Gen. Fla. 2000-13, at *2 (2000) (noting that the Legislature has granted certain state agencies the authority to hold and enforce trademarks).

Further, the Florida Virtual School’s enabling statute is more recent than the DOS statutes. The statute that designated the Florida Virtual School to be a public agency was enacted in 2000 (under the name “Florida On-Line High School”). See ch.2000-224, § 1, Laws of Fla. The DOS statutes were enacted in 1943, see ch. 21959, §§ 1-2, Laws of Fla. (1943), and have not been amended since 1979 — twenty-one years before the Florida Virtual School became a public agency. See ch. 79-65, §§ 15-16, Laws of Fla. At the time of the last amendment to the DOS statutes, the Internet would not be readily available to the public for at least a decade. See generally Prometheus Radio Project v. Fed. Commc’ns Comm’n, 373 F.3d 372, 448 (3d Cir.2004) (noting that “[t]he first graphical interface for the Internet was introduced in 1989. In 1992 there were only 50 websites in the world. By 1994, there were as many as 3,000 web sites in use. By year-end 2000, there were more than 30 million web sites.”).

Thus, the 1979 Florida Legislature likely could not have envisioned “virtual” public schools, or that a student could graduate from high school without attending classes in a brick-and-mortar structure. It is reasonable to conclude that the Legislature in 2000 intended to give this new concept agency as much autonomy as possible to succeed in what was a cutting-edge educational endeavor. Requiring the Florida Virtual School to seek assistance from a different State agency to protect its legal rights, as well as school intellectual property from third-party misappropriation and misuse, would be inconsistent with overall statutory language that grants the trustees the authority to ensure the “proper operation and improvement” of the school. § 1002.37(2), Fla. Stat. Thus, under the rules of statutory construction, we conclude that the more recent statute, which authorizes the Florida Virtual School to protect school trademarks, controls over the older statutes, which only generally vest the authority to enforce State-owned trademarks with the DOS. See Harris, 772 So.2d at 1287; ConArt, Inc., 504 F.3d at 1210.

Application to Other Enabling Statutes

Our interpretation of section 1002.37 constitutes a rational construction that effectuates the broad grant of rights and powers to the Florida Virtual School by the Legislature. It is simply not logical for a State entity to have the authority to “acquire, enjoy, use, and dispose of patents, copyrights, and trademarks and any licenses and other rights or interests thereunder or therein,” § 1002.37(2)(c), Fla. Stat., but then be powerless to protect that intellectual property from infringement. Accordingly, we hold that where this State entity has been specifically granted rights with regard to intellectual property as those listed in the enabling statute of the Florida Virtual School, that entity possesses the authority to enforce and protect its rights through legal action.

CONCLUSION

Based on the foregoing, we answer the rephrased certified question in the affirmative. We hold that the Florida Virtual School’s statutory authority to “acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein,” and the designation of its board of trustees as a “body corporate with all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School,” necessarily includes the authority to file an action to protect those trademarks. We return this case to the Eleventh Circuit Court of Appeals.

It is so ordered.

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

      . The appellant is referenced in the federal proceedings as both Florida VirtualSchool and Florida Virtual School. For purposes of this decision, we refer to appellant as the Florida Virtual School. See § 1002.37, Fla. Stat. (2013).

      N. 2.] Florida VirtualSchool also brought a claim of cyber-piracy against Name Administration, Inc., but voluntarily dismissed that claim.

      . Although we refer to sections 286.021 and 286.031 as "the DOS statutes,” the DOS was not named as the administering agency of these provisions until 1979. See ch. 79-65, §§ 15-16, Laws of Fla. Prior to the DOS assuming responsibility, these provisions were administered first by the Board of Commissioners of State Institutions, then the Department of General Services, and finally the Board of Trustees of the Internal Improvement Trust Fund. See ch. 21959, §§ 1-2, Laws of Fla. (1943); ch. 69-106, § 22, Laws of Fla.; ch. 70-440, § 2, Laws of Fla.