Time Is on My Side: Four Steps to Applying the Correct Law
Reliance on Florida’s statutes presents a recurring dilemma: What year of the Florida Statutes applies to the dispute? In Florida, the legislature repeals and then amends and readopts the Florida Statutes each year. The process produces a general effective date for statutes that were not amended and scattered effective dates for statutes that were. In some cases, knowing what version of a statute applies is critical to the legal issue presented. To ensure the correct law is applied to your legal dispute, you must know how Florida’s statutes are enacted and amended.
This article proposes a four-step process to determine and cite the applicable year of the Florida Statutes. The first step is to consider whether the statute at issue is procedural or substantive and to assess what type of date is controlling in the given area of law. The second step requires a factual inquiry into what that date is in your case. In the third step, this date is used to determine the version of the statute in effect on that date, and where that version appears in the Florida Statutes. The final step is to properly cite to that statute in legal argument.
Step One: Determine Whether the Statute Is Procedural or Substantive
Generally speaking, substantive law must usually be applied prospectively, whereas a current procedural statute may apply retroactively in pending proceedings.1 For this reason, the first step in relying on the appropriate law is to decide whether the statute to be applied is substantive or procedural in nature. A thorough treatment of the substantive/procedural distinction — a distinction that has confounded legal scholars for years — is beyond the scope of this article, but a few considerations are worth observing.
First, “substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.”2 Thus, in criminal cases, “substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.”3 Similarly, in civil cases, substantive law is that which “creates, defines, and regulates rights which are to be administered by the courts.”4
If the statute to be applied in a criminal case does not deal with the crime or its punishment, the statute may generally be applied even though the offense occurred before it was enacted. Recent examples of such amendments include changes in the order of closing arguments5 and the imposition of certain courts costs.6 Similarly, in the civil context, examples of statutes that were held to apply retroactively have included those affecting statutory work-product protections.7 In such circumstances, hearings held on a pending case are generally controlled by the statute in effect on the date of the hearing.8
In applying substantive statutes, however, you must determine what date controls the application of substantive law in your case. Consider the controlling date for the substantive law in a criminal case. In general, a defendant’s offense is defined by the statute in effect at the time of the offense. Thus, if the definition of burglary as provided under §810.02(1)(a) was amended effective July 4, 2006, the new definition would apply prospectively to any burglary offense committed on or after July 4, 2006, but before the effective date of any amendment to that statute or the reenactment of that statute (as described below).
The prospective application of Florida’s substantive criminal statutes is required by the Florida Constitution, which expressly prohibits the amendment or repeal of criminal statutes in a way that “affect[s] prosecution or punishment for any crime previously committed.”9 Thus, the offense date controls not only what law defines the offense, but also those statutory provisions that will determine its punishment.10 In addition, both the state and federal constitutions contain provisions prohibiting ex post facto laws.11
The impact of these provisions on a criminal case is not abstract: such protections prevent the legislature from adding new punishments to previously committed offenses. This becomes especially significant when a defendant is punished for an offense committed years earlier, because Florida’s sentencing regime has long been an evolving hodgepodge of guidelines, scoresheets, mandatory minimums, and statutory enhancements. Examples of criminal statutes that cannot be applied retroactively include provisions tolling a defendant’s probationary period,12 eliminating knowledge of a substance’s illegality as an element of sale offenses,13 or allowing for multiple convictions (and sentences) for offenses arising out of a single episode.14
In civil litigation, similar principles apply. There, application of substantive law is generally controlled by the date the cause of action arose, absent express legislative intent to the contrary.15 But this principle is not easily implemented. In tort cases, for instance, a cause of action for negligence accrues when the plaintiff suffers injury16 or, in the case of statutory limitations provisions, upon the date the plaintiff discovers (or should have discovered) the facts giving rise to the cause of action.17 A straightforward example would be the date of an accident.18 In contract actions, Florida case law consistently holds that a cause of action for breach of contract accrues at the time of the breach;19 however, the statute in effect at the time the contract was executed will generally govern any issues arising under the contract.20 Lastly, in the case of a purely statutory cause of action, you must look to the statute creating the cause of action to determine when it accrued and apply the version in effect at that time.21
In civil cases, as in criminal cases, “[d]ue process considerations preclude retroactive application of a law that creates a substantive right.”22 In civil cases, these considerations derive from one’s property interest in an accrued cause of action.23 New legislation may not deprive one of the remedies afforded by the existing cause of action.24 Thus, a substantive amendment will not apply to a statutory cause of action that accrued before the amendment’s effective date.25 Similarly, it is important to be alert to a newly adopted statutory cause of action purporting to replace a common law cause of action that accrued before the statute’s effective date.26
Step Two: Determine the Controlling Date in a Particular Case
Having ascertained the type of statute at issue and the event that determines the date on which the statute applies, you must now decide what the controlling date is in your case, and, if recent changes to the law are favorable or unfavorable, whether you can argue for or against retroactive application.
In a criminal case, the indictment, information, or complaint often includes an offense date. This information provides an adequate starting point to determine what substantive law applies to the case the state intends to prove. But the offense date, although required under Florida Rule of Criminal Procedure 3.140(d)(3), is not an essential element of the information.27 If the state omits it, defense counsel may need to move for a bill of particulars unless the offense date is apparent from pretrial discovery. The offense date may vary at trial from the date alleged in the information. If a guilty or no contest plea is anticipated, counsel may stipulate to an offense date that would bind the court and control application of substantive law.28 And in the case of a continuing offense, the rule of lenity often provides for application of the most lenient version of substantive law in effect during the months or years when the offense occurred.29
In civil litigation, counsel may begin with the date identified in a complaint but must ultimately use discovery tools to identify when the cause of action arose or when the parties executed a contract. This date may be straightforward, such as the date of an automobile accident, or it may be intensely disputed, such as the date on which a plaintiff became aware that his or her injuries were the result of negligence.30
Lastly, in an appellate or postconviction setting, one will generally be constrained by the record in determining what the controlling date is in a particular case. In this regard, it is important to ensure that the date established at trial — and not merely the date alleged in the pleadings — controlled the trial court’s application of substantive statutory provisions.
Step Three: Determine the Effective Dates of the Appropriate Florida Statutes
Taking the controlling date, you must now determine what statutory provisions were in effect on that date. The effective date of a statute is determined by the legislative process that led to its enactment or amendment, and the process by which the statutes are published.31 In Florida, when a bill is enacted into law, it is filed with the Secretary of State and assigned a number. The number reflects the year the law was passed and its chronological number in that year. That is, Ch. 2006-20 represents the 20th law enacted in 2006.
The text of each law is written to correlate with the Florida Statutes. The text either creates a new section within the existing Florida Statutes and sets forth the substance of the new section, or it indicates the chapter and section of the Florida Statutes that it amends and explains by underscoring and strike-through typesetting how the statute is amended. Many laws also include a section that provides the effective date of the law, usually in the final section.
As laws are enacted and filed with the Secretary of State, the Secretary makes them available to the public,32 although many practitioners have them delivered through a legal publisher’s session law service. At the end of each year, the Division of Statutory Revision publishes that year’s laws in a Digest of General Laws. Once enacted and effective, of course, the law is in force, whether it has been published in the Digest of General Laws or the Florida Statutes. Until that publication occurs, the individual law, titled a Law of Florida and designated by its chapter number, serves as a citation source for the current law.
Presently, the Division of Statutory Revision publishes bound volumes of the Florida Statutes annually. The publication schedule is not random. It coincides with a specific legislative process — the annual repeal and reenactment of all Florida Statutes. Each year, the division submits to the legislature a bill that repeals all of the prior year’s statutes (absent stated exceptions) and adopts or reenacts all of the existing statutes, as revised by that year’s laws. In 2009, this law would repeal all of the 2008 Florida Statutes and adopt or reenact all of the 2009 statutes, as amended, as of a date certain. The 2009 statutes would not include those statutes from the 2008 edition that were repealed entirely, but would include all of the remaining statutes either as they existed in the 2008 edition or as they were amended by the 2009 session laws.
The law presented by the division and passed by the legislature to achieve this process is then codified in the F.S. §§11.2421 through 11.2425. All of the session laws are similarly incorporated into the Florida Statutes as their text dictates. And when this process is complete, the division publishes the bound volumes of that year’s Florida Statutes.
It is important to note two things: 1) The effective date for the reenactment of the statutes has never been the first day of the year, nor is it a consistent date each year; and 2) the law that accomplishes this repeal and reenactment is typically not the first law passed each year.
To demonstrate how this legislative history translates into a proper statutory citation, a step-by-step description is helpful. Take, for instance, a sentencing law that must be applied in a criminal case based upon the date the crime was committed, using May 6, 2006, as an example.
The first step is to look up the specific statute. Computer research programs generally provide the current version of the statute. If you are using the books, select the year following the date you are interested in, if it is available. In our example of a 2006 crime, this would be the 2007 edition. Under the text of the statute, whether on the computer or in the book, there are historical notes that list each Law of Florida that amended the statute.
If there is a 2006 Law of Florida listed in the historical notes, you must determine its effective date. This can be discovered by examining the text of that session law, and particularly the final section of the law, which commonly provides an effective date or at least reveals the manner in which to calculate the effective date (which is explained further below). If the effective date of the 2006 amendment is a date after the date of the crime, the statute in effect is the one published in the 2005 edition of the Florida Statutes. That is, the 2006 amendment was not in effect on the date of the crime, and you must apply the prior version of the statute, which appears in the 2005 edition of the Florida Statutes.
If the effective date of the amendment is before the date of the crime, the amendment applies to your case, and in all likelihood it appears in the 2006 edition of the Florida Statutes. There are some occasions in which an amendment is enacted after that year’s publication, in which case the amendment’s text would not appear until the following year’s publication. To be safe, it would be best to check the 2006 edition to ensure the text that applies is there.
Conversely, just because the text of a law appears in the 2006 edition of the Florida Statutes does not mean that law was in effect for all of 2006. Some laws are enacted before the publication of that year’s statutes but provide for effective dates after publication. For instance, a Law of Florida may state that its provisions become effective October 1, 2006, and the 2006 edition of the Florida Statutes will include that amendment when it is published earlier in 2006. If the date that applies to your case is September 2006, the 2005 edition will contain the proper version of the statute — not the 2006 edition. In these circumstances, it may be wise to cite both the 2005 version of the Florida Statutes and the Law of Florida that amended it with a note to the court explaining the amendment was not in effect on the relevant date.
Oftentimes, the statute you are reviewing will not have been amended and the same text may appear in a number of editions of the Florida Statutes. Thus, in our example, if the statute has not been amended since 2005, the statutory text has remained the same between the date of the crime and the date you are looking it up. For the sake of precision, and to assist the court that may be interested in these things, you should still determine the correct statute year to cite by determining when the Florida Statutes were reenacted — and, thus, became effective — in 2006.
This requires turning to §§11.2421 through 11.2425, again using your computer research program or the 2007 edition of the statutes. The text of these sections, like all others, is followed by historical notes listing each Law of Florida that amended each section, but here there will be one for each year the statutes were repealed and reenacted. One of these will be a 2006 Law of Florida — Ch. 2006-3, to be exact. Turning to Ch. 2006-3, the text of that law includes all of the provisions necessary to repeal, amend, and reenact the prior year’s statutes, and the final section of that law has a provision stating its effective date.
As mentioned above, the legislature often specifies that an act is effective on a date certain. In some cases, however — including the case we are now concerned with involving §5 of Ch. 2006-3 — the legislature states, “This act shall take effect on the 60th day after adjournment sine die of the session of the [l]egislature in which enacted.” This cryptic language echoes art. 3, §9 of the Florida Constitution, which governs the effective date of all laws. Section 9 states that unless a law provides otherwise, it takes effect on “the th day after adjournment sine die of the session in which enacted,” unless the law is passed over the veto of the governor, in which place it takes effect on “the th day after adjournment sine die of the session in which the veto is overridden,” or on a later date decided by the legislature.
“Adjournment sine die” means simply the final adjournment of the legislative session. This event is marked by a formal ceremony in which the House and Senate Sergeant at Arms drop white handkerchiefs. Session services from legal publishers usually list the date of adjournment on the inside title page. Computer research services often list an effective date in the historical notes to the statute. If you have neither and have to determine the effective date of a statute that uses this language, you may need to contact the Division of Statutory Revision.33
Returning to our example, the second regular session of the 2006 legislature, in which the repeal and reenactment statutes were passed, adjourned on May 5, 2006. The 60th day after adjournment, when the repeal and reenactment became effective, was July 4, 2006. Because the crime in our example was committed on May 6, the 2005 statutes were still in effect on that date, and the proper citation will be to the 2005 edition of the Florida Statutes.34
There are a few wrinkles to this process caused by historical changes to the enactment and publication process. To begin with the easiest of these, the Florida Statutes were repealed and reenacted biennially, not annually, from 1951 to 1999. If you are dealing with statutes for those years, the same process applies except 1) the annual repeal and reenactment occurred only every other year and, therefore, your citation would usually be to either the odd-numbered year in which your event occurred or the odd-numbered year two years prior to that; and 2) there was a supplement published in even-numbered years for laws that became effective between the last year’s publication and the publication of the supplement. If the statute of interest appeared in the supplement and the date in question was after the effective date of the amendment, but before the next year’s repeal and reenactment, the supplement should be cited.
From 2000 to 2002, however, there was no repeal or reenactment act passed. The Division of Statutory Revision published the statutes annually, but the publication was not dependent upon the repeal and reenactment. It appears, then, that if a statute remains unchanged in one of these years, and the event at issue occurred in that year, a practitioner could cite to that edition of the Florida Statutes. If a statute was amended that year, the practitioner would need to investigate what changes were made and when, and in what edition the changes appeared.
If you forget these details — or misplace this article — there are a few sources from which you can reconstruct this process. The preface to every official edition of the Florida Statutes includes a section explaining the repeal and reenactment process, and cites to the chapters and sections of the Florida Statutes where that process is codified. Session law services also often include prefaces that explain legislative processes. And, of course, the official government Web sites and offices are often a source of similar information.
Step Four: Employ the Proper Citation Format
Perhaps the easiest part in this four-step process is to employ the proper citation format once you have determined the statute in effect on the relevant date. Florida practitioners look first to Florida Rule of Appellate Procedure 9.800, where the Florida Supreme Court has established citation forms for most Florida sources of law. Rule 9.800(f) provides two examples of proper statutory citation: “§ 350.34, Fla. Stat. (1973). § 120.53, Fla. Stat. (Supp. 1974).”
Rule 9.800(o) also refers to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 18th ed. 2005), as a resource for citation rules not covered by Rule 9.800. Section 12.2.1 of The Bluebook provides that a statute currently in effect should be cited by reference to the current official code or its supplement, and a statute that is no longer in force should be cited by reference to the last edition of the official code in which the statute appeared. In Florida, this edition should be the edition in effect on the relevant date.
Combining these rules, the proper citation format for a Florida statute is the section symbol, followed by the chapter and section number of the statute, comma, followed by “Florida Statutes,” and concluding with a parenthetical citing the official edition of the Florida Statutes that was in effect and included the statute as it existed on the relevant date, as explained above. If the statute appears in the text as part of a sentence, “section” and “Florida Statutes” should be written out. If the statute is simply a citation at the conclusion of a sentence or in a footnote, the section symbol and the abbreviation “Fla. Stat.” should be used. And once a statutory chapter is cited, subsequent citations to the chapter may use the short form of citation, citing simply “section” or the section symbol followed by the chapter and section number.
Citing the correct version of a statute may seem like an esoteric task, reserved for legal perfectionists and of little moment in many cases. In some cases, however, critical amendments to a statute affect the outcome of a case — a criminal defendant is sentenced under harsher sentencing laws enacted after the date of his crime, or an injured plaintiff is subjected to statutory limitations on recovery not in effect when the injury occurred. Proper advocacy, thus, requires an understanding of what statutes apply, and when.
1 Glover v. State, 474 So. 2d 886, 891 (Fla. 1st D.C.A. 1985) (observing “Florida courts have apparently made a distinction between statutes affecting substantial rights and statutes affecting procedure, those affecting procedure in some instances being permitted to have retrospective operation”).
2 Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).
3 State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969).
4 Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So. 2d 602 (Fla. 2d D.C.A. 1997).
5 Grice v. State, 967 So. 2d 957 (Fla. 1st D.C.A. 2007).
6 Griffin v. State, 980 So. 2d 1035 (Fla. 2008).
7 City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla. 1986).
8 See generally Johnson v. State, 371 So. 2d 556 (Fla. 2d D.C.A. 1979).
9 Fla. Const. art. X, §9; see also Raines v. State, 42 Fla. 141, 28 So. 57, 58 (Fla. 1900).
10 See, e.g., Ray v. State, 933 So. 2d 716, 718 (Fla. 4th D.C.A. 2006) (burglary statute was that in place at the time of the offense); Castle v. State, 305 So. 2d 794 (Fla. 4th D.C.A. 1975), aff’d, 330 So. 2d 10 (Fla. 1976).
11 See Fla. Const., art. I, §10; Rogers v. Tennessee, 532 U.S. 451 (2001).
12 Harris v. State, 893 So. 2d 669 (Fla. 1st D.C.A. 2005).
13 Starling v. State, 842 So. 2d 992, 993 n.1 (Fla. 1st D.C.A. 2003).
14 Williams v. State, 547 So. 2d 710, 711 (Fla. 2d D.C.A. 1989).
15 Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985) (rejecting retroactive application of attorneys’ fees statute).
16 Dep’t of Transp. v. Soldovere, 519 So. 2d 616, 617 (Fla. 1988).
17 Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000).
18 Woodall v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla. 1997).
19 See, e.g., Holiday Furniture Factory Outlet Corp. v. State, Dep’t of Corr., 852 So. 2d 926, 928 (Fla. 1st D.C.A. 2003).
20 Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d D.C.A. 1983).
21 Estate of Doyle ex rel. Doyle v. Mariner Healthcare Of Nashville, Inc., 889 So. 2d 829, 830 (Fla. 2d D.C.A. 2004).
22 Florida Patient’s Comp. Fund v. Scherer, 558 So. 2d 411, 414 (Fla. 1990).
23 See Fla. Const. art. I, §9 (“No person shall be deprived of. . . property without due process of law. . . . ”).
24 Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th D.C.A. 2007).
25 Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 640, n.1 (Fla. 5th D.C.A. 2005).
26 State, Dept. of Transp. v. Knowles, 402 So. 2d 1155 (Fla. 1981).
27 Tingley v. State, 549 So. 2d 649, 651 (Fla. 1989).
28 Burnsed v. State, 743 So. 2d 139 (Fla. 2d D.C.A. 1999).
29 Wilkinson v. State, 889 So. 2d 110 (Fla. 2d D.C.A. 2004).
30 Cascio v. St. Joseph Hosp. of Port Charlotte, Inc., 734 So. 2d 1099 (Fla. 2d D.C.A. 1999).
31 This article focuses on the Florida Statutes, but the analysis in other jurisdictions is the same. For example, in the federal system, the legislature enacts public laws, which are codified in the United States Code. A new edition of the Code is published every six years, with annual cumulative supplements issued in intervening years.
32 See Florida Department of State, State Library and Archives of Florida, Laws of Florida, http://laws.flrules.org.
33 There appears to be no easily accessible official legislative Web site cataloguing this information.
34 It is also common for a Law of Florida to state the act takes effect “upon becoming a law.” Pursuant to Fla. Const. art. 3, §8, a bill becomes law when the governor signs it or fails to veto it within seven days after presentation (15 days if the legislature adjourns for more than a month within the seven days).
Kristin A. Norse is an attorney at Kynes, Markman & Felman, P.A., where she handles appeals in state and federal courts and provides litigation support. She received her bachelor’s degree in English, cum laude, from Boston University, and her juris doctor degree from Boston University School of Law. After a number of years in private practice, Ms. Norse served as senior staff attorney for Judge Chris W. Altenbernd of the Second District Court of Appeal before she reentered private practice and joined Kynes, Markman & Felman. She is currently president of the Hillsborough Association for Women Lawyers, a member of the board of directors for Powerstories Theatre, and an editor of this column.
Brandon R. Christian is a staff attorney for Judge Chris W. Altenbernd of the Second District Court of Appeal. He received his J.D., cum laude, from Stetson University College of Law and his B.A. from Stetson University.
This column is submitted on behalf of the Appellate Practice Section, Dorothy Frances Easley, chair, and Tracy R. Gunn and Heather M. Lammers, editors.