author: PER CURIAM. PARIENTE, J.,

text:
    Edward J. ZAKRZEWSKI, II, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC16-729
    Supreme Court of Florida.
    [May 25, 2017]
    Martin J. McClain of McClain & McDer-mott, P.A., Wilton Manors, Florida,' for Petitioner
    Pamela Jo Bondi, Attorney General, and Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

This case is before the Court on Edward J. Zakrzewski, II’s petition for a writ of habeas corpus claiming a right to relief under the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the following reasons, we affirm . Za-krzewski’s three sentences of death.

In 1994, Zakrzewski pled guilty to three charges of first-degree murder for the deaths of his wife and two young children. Zakrzewski v. State, 717 So.2d 488, 490 (Fla. 1998), cert. denied, 525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999). After the penalty phase, the jury recommended sentences of death for the murders of Za-krzewski’s wife and son, both by a vote of seven to five. Id. at 491. For the murder of Zakrzewski’s daughter, the jury recommended a sentence of life imprisonment without parole. Id. The trial court, concluding that the aggravating factors outweighed the mitigating circumstances for all three murders, followed the jury’s recommendation on the first two and overrode the jury’s recommendation on the third and sentenced Zakrzewski to death for all three murders. Id. On direct appeal, this Court “affirm[ed] thé three death sentences,” Id. at 495.

In 2003, Zakrzewski appealed the trial court’s denial, of postconviction relief on his claim that Florida’s death penalty is unconstitutional under the. United States Supreme Gourt’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Zakrzewski v. State, 866 So.2d 688, 692, 696 (Fla. 2003). This Court affirmed the trial court’s denial of postconviction relief. Id. at 697. Zakrzew-ski now claims that his death sentences are unconstitutional under Hurst v. Florida and Hurst and that he is entitled to relief under chapter 2016-13, Laws of Florida.

In Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017), we held that Hurst does not apply, retroactively to sentences of death that were, final before the .United States Supreme Court decided Ring. In Marshall v. State, 2017 WL-1739246 (Fla. May 4, 2017), we denied Marshall’s petition for-a writ of habeas corpus based on Asay, concluding that the judicial override in Marshall’s ease did not warrant an exception to the retroactivity-‘analysis in Asay. Id. Za-krzewski’s sentences became final in 1999 when the United States Supreme Court denied his petition for certiorari review. Thus, Zakrzewski is not entitled to Hurst relief, and we deny his petition for writ of habeas corpus.

It is so ordered.

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

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J.,

concurring in result.

Despite the savage, horrific way in which Zakrzewski, a veteran of the United States Air Force, murdered his wife and two children, the jury votes in this case, where “the trial judge found two statutory mitigating [circumstances], as well as a number of nonstatutory mitigating [circumstances],” were 7-5, 7-5, and 6-6. Zakrzewski v. State, 717 So.2d 488, 494 (Fla. 1998). Following the jury’s two recommendations for death and overriding the jury’s third recommendation for life, the trial court sentenced Zakrzewski to death for all three murders. The sentences of death became final in 1999. Majority op. at 1159.

I concur in the majority’s result because I am bound by this Court’s precedent in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017), and Marshall v. State, 2017 WL 1739246 (Fla. May 4, 2017), which held that Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017), does not apply retroactively to sentences of death that became final before the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and there is no exception to this rule for sentences that resulted from judicial overrides.

However, as I expressed in Asay and Chief Justice Labarga expressed in Marshall, the judicial override for the death sentence where the jury voted for life “constitutes an injustice that should be remedied.” Marshall, 2017 WL 1739246, at *1 (Labarga, C.J., dissenting); accord Asay, 210 So.3d at 35 n.32 (Pariente, J., concurring in part and dissenting in part). Of course, in this case, as Petitioner points out, Zakrzewski’s counsel raised arguments substantially similar to those that were eventually recognized in both Ring and Hurst, including that Florida’s capital sentencing scheme was unconstitutional under the Sixth Amendment and article I, section 16, of the Florida Constitution for requiring only a bare majority of the jury’s vote to impose death.

As Justice Anstead stated, dissenting to this Court’s 1998 opinion affirming the judicial override in this case, joined by Chief Justice Kogan and Justice Shaw:

The majority has not honored Tedder and our consistent case law in holding that, despite the unusual and unique circumstances involved herein, and the extensive amount of statutory and non-statutory mitigation established, no reasonable juror could vote for mercy, as the jury did here, and spare appellant’s life for the killing of the child Anna, while voting for death in the killing of Edward.
The mistake of the majority is illustrated by the recent case of Esty v. State, 642 So.2d 1074, 1076 (Fla. 1994), where the trial court overrode the jury’s life recommendation and found the HAC and CCP aggravators, the statutory mit-igator of no significant prior criminal history, and no nonstatutory mitigation. In reversing the improper override, we explained the Tedder standard and its application:
For a trial judge to override a jury recommendation-of life, ‘the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.’ Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). An override is improper if there is a reasonable basis in the record to support the jury’s recommendation. Ferry v. State, 507 So.2d 1373, 1376 (Fla. 1987). The record in this case reveals a number of factors that support the jury’s recommendation, including E sty’s age of eighteen at the time of the murder, his lack of a criminal history, his potential for rehabilitation, and the possibility that he acted in an emotional rage. Thus, we conclude that jury override was improper because the jurors could have relied on these factors established in the record to recommend a life sentence in this case.
Id., 642 So.2d at 1080 (emphasis supplied). Similarly, in Strausser v. State, 682 So.2d 539, 542 (Fla. 1996), we found that the trial court’s override failed the Tedder standard because “there was vast mitigation to support the jury’s recommendation.” Likewise, we have just recently again reaffirmed this enduring standard in reversing the trial court’s override of the jury’s recommendation of a life sentence in Pomeranz v. State, 703 So.2d 465, 471 (Fla. 1997), the latest of a series of recent cases wherein we have consistently reaffirmed Tedder. See Marta-Rodriguez v. State, 699 So.2d 1010, 1012-1013 (Fla. 1997); Jenkins v. State, 692 So.2d 893, 895 (Fla. 1997); Boyett v. State, 688 So.2d 308, 310 (Fla. 1996).
The majority has not considered the facts in a light most favorable to the recommendation of the jury, as we are required to do, or acknowledged the unchallenged reasonable basis in the record supporting the jury’s vote as to Anna’s death. Further, the majority has ignored not only the evidence and inferences therefrom that would support the jury’s recommendation, but has also ignored the fact that even the jury vote recommending death was by a slim seven to five margin, one vote away from a life recommendation for the appellant. Hence, the majority, in direct violation of the law and our decision in Tedder has substituted its subjective analysis of the facts for the views of the sworn and death-qualified jurors, who not only could have had reasonable but differing views as to whether death was appropriate, but did have those views and openly expressed them. The majority has apparently concluded that because its members would not have extended mercy, the views of the twelve citizens sitting on this jury extending mercy will be ignored.
There can be no legitimate dispute that the jury had an abundance of evidence upon which it could have based its life recommendation for Anna’s death. Indeed, the extensive mitigation found by the trial court in this case is vastly greater than that found in the cases discussed above and, both in its nature and degree, is unique. Even the trial judge, who obviously disagreed with the jury’s recommendation, acknowledged the existence of the unusual extent of the mitigation and found two statutory mitigators, no significant prior criminal history and under the influence of an extreme mental or emotional disturbance, and gave varying degrees of weight to some fourteen (14) nonstatuto-ry mitigators, ranging from substantial to slight weight. On such a record there is simply no way that we can properly conclude that there is no “reasonable basis in the record to support the jury’s recommendation.”
As we approach the 21st century of our civilization, do we really want to take a law (the trial judge’s sentencing discretion) that was intended to act as a rational check on a jury possibly voting for death based upon an emotional appeal, and twist that law so as to use it as a sword for the judiciary to emotionally trump a jury acting with reasoned mer-C£?

Zakrzewski, 717 So.2d at 496-97 (Anstead, J., concurring in part and dissenting in part) (last emphasis added) (footnote omitted).

The bottom line is that, in light of Hurst, we' should at least reconsider our case law on judicial overrides. Only three defendants stand sentenced to death as a result of a judicial override. Zakrzewski’s sentence was the most recent of the judicial override sentences that this Court affirmed, and we have not affirmed a judicial override on direct appeal since Zakrzew-ski’s case. Further, the cases upon which this Court relied to uphold jury overrides—Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989)—have now been overruled by the United States Supreme Court in Hurst v. Florida. See, e.g., Marshall v. Crosby, 911 So.2d 1129, 1135 (Fla. 2005).

As this Court has explained, when a jury recommends a sentence of life, “a majority of a twelve-person jury concluded that ... the record before them ... compelled a life recommendation.” Keen v. State, 775 So.2d 263, 284 n.19 (Fla. 2000). Since Za-krzewski’s case, the Court has emphasized the “fundamental distinction ... between a defendant who receives an advisory sentence of death from .a jury as opposed to one who receives an advisory sentence of life.” Weaver v. State, 894 So.2d 178, 200 (Fla. 2004); see Coleman v. State, 64 So.3d 1210, 1225-27 (Fla. 2011). After Hurst v. Florida and Hurst, which emphasized the critical importance of the jury’s findings and ultimate sentence recommendation in capital sentencing, this distinction is even clearer. Thus, I would grant Hurst relief to Zakrzewski for his, third sentence of death that resulted from a judicial override.

.Although granting relief to Zakrzewski based on the judicial' override in his-case would not disturb .Zakrzewski’s other two “bare majority” death sentences, recognizing that judicial overrides warrant relief under Hurst would afford relief to the two other pre-Ring defendants whose sentences were the product of the clearly unconstitutional judicial override. See Marshall, 2017 WL 1739246, at *1-3 (Labarga, J., dissenting).


source: Caselaw Access Project

author:
QUINCE, J.
      LAWSON, J.,

license: Public Domain

text:
    HARDEE COUNTY, Florida, Petitioner, v. FINR II, INC., Respondent.
    No. SC15-1260
    Supreme Court of Florida.
    [May 25, 2017]

      Frank E. Matthews, D. Kent Safriet, Timothy M. Riley, and Mohammad O. Jazil of Hopping Green & Sams, P.A., Tallahassee, Florida; and Kenneth B. Evers of Kenneth B. Evers, P.A., Wauchula, Florida, for Petitioner
    Edward P. de la Parte, Jr., Patrick J. McNamara, David M. Calderilla, and Vivian Arenas-Battles of de la Parte & Gilbert, P.A., Tampa, Florida, for Respondent
   QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in FINR II, Inc. v. Hardee County, 164 So.3d 1260 (Fla. 2d DCA 2015). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in City of Jacksonville v. Smith, 159 So.3d 888 (Fla. 1st DCA 2015). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the First District’s holding in Smith that the Bert J. Harris, Jr., Private Property Protection Act (“Bert Harris Act” or “Act”) does not apply to claims arising from government action that regulates property adjacent to the claimant’s property. We disapprove the Second District’s contrary decision in FINR II.

BACKGROUND

Respondent, FINR, operates a neurological rehabilitation center on a large parcel adjacent to property owned by a phosphate mining company. In pursuit of mixed-use residential and commercial development, Petitioner, Hardee County, encouraged FINR to apply for a “Rural Center” land use designation for its parcel which included a quarter-mile mining setback on adjacent property. In 2007, FINR applied for, and Hardee County approved, the land use designation change and modified the Hardee County Comprehensive Plan to grant the setback on the phosphate mining company’s adjacent property.

In 2012, Hardee County granted the phosphate mining company a special exception to the land use designation that would decrease the quarter-mile setback to as little as 150 feet. FINR brought a claim under the Bert Harris Act, section 70.001, Florida Statutes (2012), against Hardee County seeking $38 million in damages for devaluation of its property for use as a neurological rehabilitation center. The trial court dismissed the claim with prejudice, finding that the Act did not apply to FINR because the quarter-mile setback change did not directly restrict or limit FINR’s property. The Second District reversed and certified conflict with Smith, in which the First District found that a property-owner may not state a claim under the Bert Harris Act for devaluation of the claimant’s property based on governmental action on the adjacent parcel.

ANALYSIS

This Court reviews statutory interpretation de novo. See Polite v. State, 973 So.2d 1107, 1111 (Fla. 2007). The goal of statutory interpretation .is to identify the Legislature’s intent. Crews v. State, 183 So.3d 329, 332 (Fla. 2015). To do so, this Court first consults the plain meaning of the statute’s text. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla. 2012). “When the statute is clear and unambiguous,” this Court uses the plain language and avoids rules of statutory construction. Daniels v. Fla. Dept. of Health, 898 So.2d 61, 64 (Fla. 2005). This Court endeavors to give effect to every word of a statute so that no word is construed as “mere sur-plusage.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla. 2007).

I. Plain Meaning

The Act was intended “as a separate and distinct cause of action from the law of takings ... for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.” § 70.001(1), Fla. Stat. (2012). An existing use includes “actual, present use or activity” on the land and “reasonably foreseeable, nonspecula-tive land uses” which increase the fair market value of the property. § 70.001(3)(b)l.-2., Fla. Stat. A vested right is determined under the principles of equitable estoppel or substantive due process. § 70.001(3)(a), Fla. Stat. •

The Act provides that the government action must “directly restrict[ ] or limit[ ] the use of real property” for the property to be considered “inordinately burdened.” § 70.001(3)(e)l., Fla. Stat. To ensure that the word “directly” is not construed as hiere surplusage, the government action must directly act upon the owner’s parcel. To hold otherwise would give the language no more meaning than if the word “directly” had been omitted. The plain language of the Act provides that claims under the Act may not be based on government action on another parcel. Because reasonable minds may disagree with this interpretation, we turn to other tools of statutory construction.

II. Canons of Construction, Attorney General Opinion, and Legislative History

Statutes that alter the common law are narrowly construed. See Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla. 2000). Waivers of sovereign immunity must be construed’ narrowly in favor of the government. See Rabideau v. State, 409 So.2d 1045, 1046 (Fla. 1982); Manatee Cty. v. Town of Longboat Key, 365 So.2d 143, 147 (Fla. 1978). Narrow interpretation of waivers of sovereign immunity protect “the public against profligate encroachments on the public treasury.” Spangler v. Fla. St. Tpk. Auth., 106 So.2d 421, 424 (Fla. 1958). Where a statute is open to multiple interpretations, Florida courts endeavor to avoid interpretations which would lead to absurd results. Tampa-Hillsborough Cty. Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926, 929 (Fla. 1983). Because the Act alters the common law and waives sovereign immunity, it must be narrowly construed.

Legislative history can be helpful in construing a statute when its plain language is unclear. BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003). Additionally, this Court has held that “[although an opinion of the Attorney General is not binding on a court, it is entitled to careful consideration and generally should be regarded as highly persuasive.” McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1214 (Fla. 2006) (quoting State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla. 1993)). Amendments to statutes enacted shortly after controversies regarding the interpretation of the original act arise may be considered guidance for the original interpretation. Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla. 1985). Long periods between original enactment and amendment render use of the amendment to demonstrate original legislative intent inappropriate. Betts, 928 So.2d at 1210. With these principles in mind, we consider the parameters of the Bert Harris Act.

The Act is an alteration of common law principles of eminent domain, and inverse condemnation. Therefore, the Act must be construed narrowly, no more broadly than clearly specified. See Rudnick, 761 So.2d at 293. Because the Act does not clearly extend to owners whose property has not been directly regulated by government action, we decline to so broadly construe it.

In addition to being a derogation of common law, the Act is also a waiver of sovereign immunity; This Court construes waivers of sovereign immunity narrowly to protect public funds. See Rabideau, 409 So.2d at 1046; Town of Longboat Key, 365 So.2d at 147; Spangler, 106 So.2d at 424. This canon of construction also encourages a narrow reading of the Act. If we interpret the Act more broadly, local governments would be subject to claims under the Act each time they made changes to their .own property or performed duties within their well-established police powers which may affect private property. A broad interpretation leads to an absurd result, which we endeavor to avoid. See K.E. Morris Alignment Serv., Inc., 444 So.2d at 929.

In interpreting a statute, legislative history is also instructive. Meeks, 863 So.2d at 289. The legislative history of the Act indicates that the Legislature intended to create new procedures to give inordinately burdened property owners a day in court before exhausting all administrative remedies and to give them the ability to arbitrate a dispute with a governmental entity without first having to obtain its consent. Fla. H.R. Comm. on Judiciary, CS for HB 863 (1995), Bill Analysis & Economic Impact Statement 2-3 (final May 23, 1995) (on'file with Fla. State Archives). In a scholarly article, three original drafters of the Act provided a detailed history of its origin. David L. Powell et. al., A Measured Step to Protect Private Property Rights, 23 Fla. St. U. L. Rev. 255, 259-61 (1995). According to the drafters, the Legislature was focused on “the appropriate means to give landowners protection .,. against some regulatory actions which do not rise to the level of a taking.” Id. at 258. In the drafters' words, “[a] governmental action which indirectly burdened or inadvertently devalued an owner’s land, because of regulatory decisions regarding another owner’s property, would be too attenuated for relief under the Harris Act.” Id. at 273. Thus, legislative history supports the interpretation that the Act was intended to apply to property that was itself the subject of the governmental action, not to tangential property.

Attorney General opinions are also persuasive in statutory construction. Betts, 928 So.2d at 1214. While, not binding on this Court, the Florida Attorney General favored a narrow construction of the Act in an opinion issued the year the Act became effective. The Attorney General found that the Act does not apply to property that has “suffered a diminution in value or other loss as a result of its proximity to the property that is subject to” a government action. Op. Att’y Gen. Fla. 95-78 (1995). We agree.

While long periods between a statute’s enactment and its amendment render the use of the amendment to demonstrate original legislative intent inappropriate, amendments enacted shortly after controversies as to the interpretation of the original act arise may be considered useful guidance for the original intent. Lowry, 473 So.2d at 1250; Betts, 928 So.2d at 1210. The 2015 Amendment to section 70.001(3)(f) made clear that the Act does not apply to property owners whose parcel is not “the subject of and directly impacted by the action of a governmental entity.” Ch. 2015-142, § 1, Laws of Fla. (2015). The Final Bill Analysis of the 2015 Amendment cites the conflict case, Smith, 159 So.3d at 888, as the impetus for the Amendment. See Fla. H.R. Comm, on Judiciary, CS for CS for CS for HB 383 (2015), Final Bill Analysis 5 n.25 (final June 17, 2015) (available at https://www. flsenate.gov/Session/Bill/2015/0383/ Analyses/h0383z2.CJS.PDF). Although the 2015 Amendment was passed nearly two decades after the original enactment, the 2016 Amendment was passed in response to the novel controversy arising from this case. We And the 2015 Amendment persuasive.

These tools of statutory interpretation favor a narrow interpretation of the Act. Owners whose property has hot been directly acted upon by a governmental entity may not state a claim under the Act. With this interpretátion, we return to its application to-this case.

III. Application to FINR

The government action in this case directly applied to the mining setback. For FINR to state a claim, FINR must have a property interest in the setback. Setbacks can be enforced through restrictive covenants or deed restrictions or imposed by the government through its police power. In holding that setbacks may be accomplished by police power,' this Court noted the following:

[S]etback lines ... do not really create an easement in the strict legal sense. No one acquires any right of passage or other use to the exclusion of the owner over that part of the lot upon which buildings or structures are forbidden. The effect of setback lines and opén yards and spaces in zoning ordinances is merely to regulate the use of property. 'It gives no beneficial use to another, except as light and air may rest undisturbed in the space where structures are prohibited. This restriction of use is based upon the exercise of the police power for the general welfare, and is not based on contract rights or the exercise of the power of eminent domain.

City of Miami v. Romer, 58 So.2d 849, 851 (Fla. 1952)(emphasis added) (quoting State v. Houghton, 171 Minn. 231, 213 N.W. 907, 908 (1927)). The setback in this case was created by police power—land use designation—for the general welfare. The setback in this case is not a property right for which FINR may state a claim under the Act.

CONCLUSION

Based on the foregoing, we approve the First District’s decision in Smith, disapprove the Second District below, and remand for further proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.

LAWSON, J., concurs specially with an opinion, in which CANADY, J., concurs.

POLSTON, J., concurs in result only.

LAWSON, J.,

specially concurring.

I agree with the result reached by the majority and most of the majority opinion, but concur specially because much of the majority’s analysis is unwarranted. The text of the statute fully resolves this case, leaving “no occasion for resorting to the rules of statutory interpretation and construction,” Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (citations omitted), and rendering section II of the majority opinion improper, id. As the plain language of the statute ends our inquiry, I would end our analysis with the conclusion in section I that: “The plain language of the Act provides that claims under the Act may not be based on government action on another parcel.” Majority op. at 1165.

CANADY, J., concurs.