Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-882 _____________________________ DENNIS CHARLES SCHMIDT II, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Jackson County. Wade Mercer, Judge. January 28, 2021 ON MOTION FOR REHEARING PER CURIAM. DENIED. ROWE and NORDBY, JJ., concur; WINOKUR, J., concurs with opinion. _____________________________ WINOKUR, J., concurring. I agree that we should deny rehearing. In his motion for rehearing, Schmidt claims that this Court resolved an “ambiguity” in section 948.06(2)(f)1.c., Florida Statutes. Because the provision is ambiguous, Schmidt argues, we have an obligation under section 775.021(1), Florida Statutes, to interpret the statute in his favor. I disagree. First, the existence of “ambiguity” does not end the inquiry. To the extent that section 775.021(1) expresses the rule of lenity, it is “a canon of last resort and only applies if the statute remains ambiguous after consulting traditional canons of statutory construction.” Paul v. State, 129 So. 3d 1058, 1064 (Fla. 2013) (citing Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008)). A finding of ambiguity does not necessarily require application of section 775.021(1). Second, section 775.021(1), by its terms, does not apply to the statute under consideration. Section 775.021(1) reads as follows: The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused. Section 775.021(1) was enacted in 1974 as part of the “Florida Criminal Code” and remains unchanged. Ch. 74-383, §§ 1 & 3, Laws of Fla. The Florida Criminal Code amended several criminal law provisions contained in chapters 775 and 776, and amended numerous statutes defining crimes. Section 775.021(1) applies to “provisions of” the 1974 Florida Criminal Code, as well as “offenses defined by other statutes” (emphasis supplied). In other words, section 775.021(1) establishes a rule of interpretation for any statute created or amended in the Florida Criminal Code, or any statute that defines a criminal offense. 1 1 Offenses are generally described in Title XLVI of the Florida Statutes, entitled “Crimes.” Chapter 948 is contained in Title 2 Chapter 948, Florida Statutes, entitled “Probation,” existed in 1974 and included section 948.06, concerning violation of probation, as it does now. No part of Chapter 948 was amended in the Florida Criminal Code. Nor does Chapter 948 define any criminal offense. For these reasons, section 775.021(1) does not provide an interpretive rule that must be used to resolve section 948.06(2)(f)1.c. issues. Nor, for that matter, does section 775.021(1) apply to interpretation of any statutory provision in Chapter 948. Finally, to the extent that a rule of lenity exists in this state, section 775.021(1) provides its limits. The Florida Supreme Court has repeatedly noted that section 775.021(1) “codified” the rule of lenity. 2 Elsewhere, the supreme court has described the rule of lenity as a “statutory directive.” Kasischke, 991 So. 2d at 814. I take this to mean that the rule of lenity exists as an interpretive tool only so far as section 775.021(1) permits it. And because section 775.021(1) does not permit it here, it does not guide our interpretation in any way. _____________________________ XLVII, entitled “Criminal Procedure and Corrections.” While not all offenses are contained in Title XLVI, an offense typically describes an act, and indicates that the act is a felony or misdemeanor, and that it may be punished, usually by the applicable sentencing statutes. See, e.g., § 316.193, Fla. Stat. (criminalizing driving under the influence). 2 See, e.g., State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016); Hopkins v. State, 105 So. 3d 470, 475 (Fla. 2012); Valdes v. State, 3 So. 3d 1067, 1072 (Fla. 2009); Kelso v. State, 961 So. 2d 277, 279 (Fla. 2007) (all noting that the rule of lenity is “codified” in section 775.021(1)). See also Wiggins v. State, 253 So. 3d 1196, 1199 n.* (Fla. 1st DCA 2018); Vansmith v. State, 247 So. 3d 64, 67 (Fla. 1st DCA 2018); Ramsey v. State, 124 So. 3d 444, 446 (Fla. 1st DCA 2013) (same). 3 Jessica J. Yeary, Public Defender, Glen P. Gifford, Megan Long and Kacey Lacey, Assistant Public Defenders, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee. 4