Justin Hull v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JUSTIN MARSHALL HULL, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2772 June 10, 2022 Appeal from the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Howard L. Dimmig, II, Public Defender; Eric S. Gardner, Jr., Assistant Public Defender; and Daniel Muller, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General; Jeffrey Paul DeSousa, Chief Deputy Solicitor General; Kevin A. Golembiewski, Deputy Solicitor General (withdrew after briefing); and Rachel R. Siegel, Deputy Solicitor General (substituted as counsel of record), Tallahassee, for Appellee. LABRIT, Judge. Background  In 2008, Justin Hull was sentenced to eight years' probation after he pled guilty to lewd or lascivious battery of a minor. Mr. Hull's judgment and sentence imposed various "mandatory court costs," which included a "public defender fee," "filing fees," "service charges," "the cost of prosecution," and other administrative costs. Mr. Hull has not paid those costs, and they remain outstanding. About a year after Mr. Hull pled guilty, the trial court revoked his probation and sentenced him to four years in prison. Upon his release from prison, Mr. Hull was required to—and did—register and report as a sexual offender. However, in 2019, he was charged with violating section 943.0435(14)(a), Florida Statutes (2019), for failing to report biannually as a sexual offender. Mr. Hull moved to dismiss the charge, arguing that he didn't qualify as a "sexual offender" as defined by section 943.0435(1)(h)1 because he hadn't paid the costs assessed in his underlying case and thus hadn't been "released from the sanction imposed" in that case. Mr. Hull relied upon this court's decision in State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020) (holding that defendant who had not paid fine imposed as part of sanction for lewd or lascivious molestation conviction had not been released from his sanction "as 2 a whole" and therefore did not qualify as a sexual offender for registration and reporting purposes). The trial court denied Mr. Hull's motion, finding James inapposite because it involved failure to pay fines, not costs. Mr. Hull then pled guilty to the charge of failing to register and reserved the right to appeal the denial of his motion to dismiss. This appeal ensued. We affirm for the reasons discussed below. This court's decision in James In James, we considered the 2017 version of subsection 943.0435(1)(h)1, which defined "sexual offender" as a person who has been convicted of a qualifying offense and who "has been released . . . from the sanction imposed" for that offense. The statute further provided that the term sanction "includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility." § 943.0435(1)(h)1.a.(II).1 After being convicted of attempted lewd or lascivious molestation, Mr. James was sentenced to fifteen years' 1 The relevant provisions of subsection 943.0435(1)(h)1 were unchanged between 2017 and 2019. 3 prison and a $10,000 fine. James, 298 So. 3d at 91. Following his release from prison, Mr. James was charged with failing to report as a sexual offender. Id. Mr. James moved to dismiss the charge, arguing that he did not qualify as a sexual offender under section 943.0435(1)(h)1 because he had not paid the $10,000 fine and therefore had not been released from "the sanction imposed" for his underlying conviction. Id. The trial court granted Mr. James' motion and dismissed the charges, and this court affirmed. Id. Section 943.0435(1)(h)1.a.(II) defined "sanction" to specifically include fines, so we concluded that the fine was "a portion of" Mr. James' sanction. James, 298 So. 3d at 92. Because the statute "mandates that the person be released from 'the sanction imposed' "—as opposed to a sanction imposed— we held that "Mr. James does not qualify as a 'sexual offender' because his sanction, which includes a $10,000 fine, has not been released." James, 298 So. 3d at 93–94 (emphasis added). We acknowledged that the legislature "may not have intended" the outcome whereby a person otherwise required to register and report as a sexual offender could unilaterally avoid the registration and reporting requirements simply by choosing not to pay a fine. Id. 4 But we explained that was an issue for legislative, not judicial, resolution. Id. at 94. The clarifying amendment to section 943.0435 During the pendency of this appeal and in the legislative session immediately following our James decision, the legislature expressly declared that James is "contrary to legislative intent" and that a "person's failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435, Florida Statutes." See ch. 2021-156, § 1, Laws of Fla. The legislature specifically stated that it intends that a person must register as a sexual offender pursuant to s. 943.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997, has: (1)No sanction imposed upon conviction; or (2)Been released from a sanction imposed upon conviction. Ch. 2021-156, § 1, Laws of Fla.2 The legislature also amended paragraph (h) of subsection (1) of section 943.0435 to define "sexual offender" as a person who has committed a qualifying offense and [h]as been released on or after October 1, 1997, from a 2 The text of section (1) of chapter 2021-156 has been relegated to a footnote to the published statutory enactment. See § 943.0435 n.1, Fla. Stat. (2021). 5  the sanction imposed for any conviction . . . and does not otherwise meet the criteria for registration as a sexual offender under chapter 944 or chapter 985. For purposes of this sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction means includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility. If no sanction is imposed the person is deemed to be released upon conviction. Ch. 2021-156, § 2, Laws of Fla. (corresponding to § 943.0435(1)(h)1.a.(II), Fla. Stat. (2021)). Discussion We review questions of statutory interpretation de novo. See Richards v. State, 288 So. 3d 574, 575 (Fla. 2020). The dispositive question in this case is whether we should consider the legislature's clarifying amendment in our interpretation of the preamendment version of the statute. We answer this question in the affirmative, recognize that our decision in James has been abrogated, and affirm the order denying Mr. Hull's motion to dismiss. Mr. Hull argued below that fines and costs are interchangeable so the term "sanction" in section 943.0435(1)(h)1.a.(II) should be construed to include costs. The State responded that costs are not included in—and should not be read into—the statutory definition 6 of sanction. Mr. Hull also argued that the holding of James should extend to costs as well as fines, and the State resisted, contending inter alia that the holding of James should be limited to fines.3 The trial court agreed with the State. On appeal, the State's primary focus has shifted to the legislature's 2021 clarifying amendment. The State argues that under the "recent-controversy" rule,4 the legislature's clarification of its intent—not our decision in James—controls the interpretation of section 943.0435. See, e.g., Madison at Soho II Condo. Ass'n, v. Devo Acquisition Enters., 198 So. 3d 1111 (Fla. 2d DCA 2016). As we explained in Madison, "the legislature's clarification of the prior version of a statute after a recent controversy, such as a court's interpretation of the statute in contravention of the legislature's intent, is permissible." Id. at 1116. 3 See James, 298 So. 3d at 91 (stating that the "fine was not imposed as a lien, nor was it imposed as a cost"). 4 Under this rule, when "an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof." See Lowry v. Parole & Prob. Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985); see also Madison at Soho II Condo. Ass'n, v. Devo Acquisition Enters., 198 So. 3d 1111, 1116 (Fla. 2d DCA 2016). 7  Madison guides our analysis and informs our resolution of this case. There, the trial court granted summary judgment for the defendant unit owner in a dispute over unpaid condominium assessments, relying on St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Ass'n, 144 So. 3d 639 (Fla. 2d DCA 2014), a decision of this court interpreting section 718.116, Florida Statutes (2011). Madison, 198 So. 3d at 1114–15. While the Madison appeal was pending, the legislature—in the first legislative session following our St. Croix Lane Trust decision—passed an amendment clarifying section 718.116. Id. at 1113. On appeal, the plaintiff condominium association invoked the recent-controversy rule to argue that the amendment required us to interpret section 718.116 at odds with the decision in St. Croix Lane Trust; we agreed and reversed the judgment. In so doing, we addressed several key principles that apply with equal force here. We first acknowledged that "it may appear that a court's consideration of a legislature's clarification of its intent with regard to the passage of an earlier statute is akin to retroactively applying an amended statute to pending litigation," which creates potential constitutional concerns. See Madison, 198 So. 3d at 1116. We 8 determined that retroactivity principles were not in play because the association was asking "us to revisit our prior construction of the pre-amended section 718.116(3), not to retroactively apply a newer version of [it]." Id. The same is true here—the State is not asking us to retroactively apply the 2021 version of the statute, it is asking us to revisit our prior construction of the preamendment version of the statute. Next, we addressed the unit owner's argument that the judgment should be affirmed because principles of stare decisis required the trial court to apply St. Croix Lane Trust at the time it entered judgment. Id. at 1117. As we explained, "The clear legislative directives, coupled with the close temporal proximity of the amendment to St. Croix Lane Trust, leave no room for any . . . reasonable conclusion" other than that the legislature acted in response to the controversy arising out of this court's construction of the statute in St. Croix Lane Trust. Id. Thus, we decided "to reexamine St. Croix Lane Trust in light of the legislature's recent clarification of its intent." Id. at 1118. Upon doing so, and "guided by the legislature's recent clarifying amendment," we concluded that the "only . . . possible outcome" was that the "legislature 9 abrogated our interpretation of section 718.116(3) in St. Croix Lane Trust." Id. at 1119. The present situation is more compelling than the situation in Madison. There, the legislature clarified its intent when it amended the statute during the pendency of the appeal and in the first legislative session following St. Croix Lane Trust, but it did not expressly mention St. Croix Lane Trust. Here, the legislature not only clarified its intent by amending the statute during the pendency of the appeal and in the first legislative session immediately following James, it expressly stated that James "is contrary to legislative intent." Ch. 2021-156, § 1, Laws of Fla. The legislature also specifically clarified its intent that "a person's failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435." Id. Given our fundamental mandate to construe statutes so as to "give effect to legislative intent," it is proper to reexamine James in light of the legislature's express disavowal of James and specific clarification of its intent. See Madison, 198 So. 3d at 1118; see also Finley v. Scott, 707 So. 2d 1112, 1116–17 (Fla. 1998) (reasoning that although 1993 version of statute applied to case, 1994 10 amendment clarified legislative intent and therefore was appropriately considered in construing 1993 version of statute). And we conclude that the "legislature abrogated our interpretation of" section 943.0435(1)(h)1 in James. See Madison, 198 So. 3d at 1119; see also Regan v. ITT Indus. Credit Co., 469 So. 2d 1387, 1390–91 (Fla. 1st DCA 1984) (stating that courts are "bound to interpret and apply the law as pronounced by the legislature" and concluding that court was not bound to follow a supreme court case that the legislature had expressly disapproved), approved, 487 So. 2d 1047 (Fla. 1986); accord CVS EGL Fruitville Sarasota FL, LLC v. Todora, 124 So. 3d 289, 292 (Fla. 2d DCA 2013). Mr. Hull resists the recent-controversy rule, arguing that the 2021 legislature could not "clarify" the intent of the 1997 legislature that originally enacted the statute because the "makeup" of the 1997 legislature differed from that of the 2021 legislature. See, e.g., Parole Comm'n v. Cooper, 701 So. 2d 543, 544–45 (Fla. 1997) ("[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent."). Cooper 11 and the other authorities upon which Mr. Hull relies5 are inapposite. Those cases do not implicate the "recent-controversy" rule because none of them examined legislative action taken in response to a judicial interpretation of the statute or other recent controversy regarding its interpretation. The supreme court recognized this critical distinction in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995) ("[A] clarifying amendment to a statute that is enacted soon after controversies as to [its] interpretation . . . arise may be considered as a legislative interpretation of the original law and not as a substantive change." (citing Lowry, 473 So. 2d at 1248)). Cf. Palma Del Mar Condo. Ass'n No. 5 of St. Petersburg, Inc. v. Comm'l Laundries of W. Fla., Inc., 586 So. 3d 315, 317 (Fla. 1991) (holding that district court of appeal properly considered clarifying amendment to interpret preamendment version of statute where "there had been a judicial interpretation after the original enactment of [the statute] which the legislature believed was 5 M.W. v. Davis, 756 So. 2d 90, 103 n.26 (Fla. 2000); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995); Ramcharitar v. Derosins, 35 So. 3d 94, 99 (Fla. 3d DCA 2010). 12 contrary to" legislative intent); accord G.E.L. Corp. v. Dep't of Envtl. Prot., 875 So. 2d 1257, 1263 n.3 (Fla. 5th DCA 2004) (collecting cases); see also Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006) (stating that "[s]trict adherence" to the rule that the court is reluctant to consider an amendment "passed long after the original act was made law . . . has not been followed, but only when a subsequent amendment is enacted soon after a controversy regarding a statute's interpretation has arisen" (emphasis added)). Because the legislature clarified its intent immediately following our issuance of James, and specifically pronounced that James is contrary to legislative intent, we are bound to consider the legislature's clarified intent in our interpretation of the preamendment version of section 943.0435(1)(h). See Madison, 198 So. 3d at 1116 ("Florida courts have 'the right and duty' to consider the legislature's recently enacted statute clarifying its intent . . . of a statute, which was passed soon after a controversy arose in the interpretation of that original, pre-amended statute." (first quoting Ivey v. Chicago Ins. Co., 410 So. 2d 494, 497 (Fla. 1982), then citing Finley v. Scott, 707 So. 2d 1112, 1116–17 (Fla. 1998)). 13  Our dissenting colleague raises important constitutional considerations concerning the operation of the recent controversy rule in criminal cases. Mr. Hull, however, didn't raise those issues so we are precluded from considering them. See generally Shere v. State, 742 So. 2d 215, 218 n.6 (Fla. 1999) ("[F]or most of these claims, Shere did not present any argument or allege on what grounds the trial court erred in denying these claims. We find that these claims are insufficiently presented for review."); Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995) ("The law is well settled that failure to raise an available issue constitutes an admission that no error occurred."); I.R.C. v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) ("In considering I.R.C.'s appeal, we are limited to the specific issues that I.R.C. has raised."). Thus, while we may share many of the concerns Judge Atkinson's opinion discusses,6 we must 6 We agree with the dissent that our interpretation of Florida Statutes section 943.0435(1)(h)1 in James was correct and felicitous to the operative text of the statute at that time. We also add that we, too, find the recent controversy rule—by which a subsequent legislature's amendment somehow slips free from the bonds of time to recalibrate the meaning of the words that a prior legislature enacted—both puzzling in its application and potentially troubling in its effect. It is, however, a settled facet of the law in our State. See Leftwich v. Fla. Dep't of Corrs., 148 So. 3d 79, 83 (Fla. 2014); Metropolitan Dade County v. Chase Fed. Hous. 14 reluctantly affirm the result the trial judge reached. See Firestone v. Firestone, 263 So. 2d 223, 225 (Fla. 1972) ("[T]he findings of the lower court are not necessarily binding and controlling on appeal, and if these findings are grounded on an erroneous theory, the judgment may yet be affirmed where appellate review discloses other theories to support it."). Mr. Hull also argues, as he did below, that (1) fines and costs are functionally equivalent in this context so (2) James should nonetheless apply to our interpretation of 943.0435(1)(h)1.a.(II). We reject this argument for several reasons. First, assuming without deciding that fines and costs are functionally equivalent in this context, the legislature has pronounced that our holding in James contradicts legislative intent. We must defer to the legislature's pronouncement. See CVS EGL Fruitville Sarasota FL, LLC, 124 So. 3d at 292. Second, the legislature explicitly clarified that failure to Corp., 737 So. 2d 494, 503 (Fla. 1999); Finley v. Scott, 707 So. 2d 1112, 1116-17 (Fla. 1998); Lowry v. Parole & Prob. Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985); Madison at Soho II Condo. Ass'n, 198 So. 3d at 1116–17. Indeed, though we wish it were otherwise, we are told that Florida courts "ha[ve] the right and the duty" to apply this method of statutory (re)construction. Ivey v. Chi. Ins. Co., 410 So. 2d 494, 497 (Fla. 1982) (quoting Gay v. Can. Dry Bottling Co. of Fla., 59 So. 2d 788, 790 (Fla. 1952)). 15 pay a "fine" in this context does not relieve a person "of the requirement to register as a sexual offender." Ch. 2021-156, § 1, Laws of Fla. The text of section 943.0435(1)(h)1.a.(II) never included costs, and the legislature struck the term "fines" in the 2021 amendment. Under the recent-controversy rule, it follows that the term costs should not be read into the definition of sanction in the preamendment version of the statute. Lastly, the legislature plainly stated its intent that "a person must register as a sexual offender pursuant to s. 940.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997, has . . . been released from a sanction imposed upon conviction." Ch. 2021-156, § 1, Laws of Fla. (emphasis added). All operative events in this case occurred long after October 1, 1997, and Mr. Hull undisputedly was "released from a sanction" when he was released from prison. Recognizing—as we must—the legislature's abrogation of James and the legislature's express and specific clarification of its intent, we are bound to conclude that a person who has failed to pay court costs is not relieved of the requirement to register and report as a sexual offender. And we affirm the order denying Mr. 16 Hull's motion to dismiss. Affirmed. LUCAS, J., Concurs. ATKINSON, J., Dissents with opinion. ATKINSON, Judge, Dissenting. I respectfully dissent. In State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), a prior panel of this court properly applied section 943.0435(1)(h)1.a, Florida Statutes (2017), according to the plain and ordinary meaning of its unambiguous text. It would be improper to apply the recent clarification rule in contravention of that meaning in this case. This court is not bound by precedent to apply the rule under the circumstances of this case, and to do so would violate the constitutional prohibition of ex post facto laws and this court's obligation to observe the separation of powers in our state government. The version of section 943.0435(1)(h)1.a in effect before the 2021 amendment defined a "sexual offender" as a person who had been convicted of an enumerated sex offense and "[h]ad been 17 released on or after October 1, 1997, from the sanction imposed for any [such] conviction." "[A] sanction imposed . . . include[d], but [wa]s not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration." § 943.0435(1)(h)1.a.(II). Therefore "the sanction imposed for" a conviction included not only the incarcerative and supervisory aspects of the sentence but any fine that had been imposed as well. As such, as the James court concluded, a person has not been "released . . . from the sanction imposed for" a conviction of a sex offense until he has been released from the entire sanction imposed against him, including the liability to pay fines. James, 298 So. 3d at 92.7 7 Further, as the James court concluded, the absurdity doctrine is inapplicable to the pre-amendment section 943.0435 because the application of the plain language to the circumstances produced merely "an unintended result," not "an absurd or patently unreasonable one." See Mesen v. State, 271 So. 3d 164, 169 (Fla. 2d DCA 2019) (quoting Maddox v. State, 923 So. 2d 442, 452–53 (Fla. 2006) (Cantero, J., dissenting)). Courts from time to time are obliged to apply as written legislative enactments with perplexing or seemingly ridiculous consequences and policy implications. See id.; see also Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 145–46 (2014) (recognizing that a statute had "worrisome international-relations consequences" but declining to depart from applying the text of the statute as enacted by Congress); United States v. Brown, 206 U.S. 240, 244 (1907) ("[W]hatever the 18  Because James is a prior decision of this court, we are bound to follow it. However, there are also Florida Supreme Court decisions and prior panel decisions of this court applying the recent controversy rule which suggest a court should interpret a pre- amendment statute in light of a subsequent "clarification" rather than the statute's plain meaning in isolation. See, e.g., Leftwich v. Fla. Dep't of Corr., 148 So. 3d 79, 83 (Fla. 2014); Lowry v. Parole & Prob. Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985); Madison at Soho II Condo. Ass'n v. Devo Acquisition Enters., LLC, 198 So. 3d 1111, 1118 (Fla. 2d DCA 2016) (applying the recent controversy rule to consequences, we must accept the plain meaning of plain words."); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 237–38 (2012) (explaining that in order to prevent the absurdity doctrine from becoming "a slippery slope" that "can lead to judicial revision of public and private texts to make them (in the judge's view) more reasonable . . . the doctrine must be subject to two limiting conditions: . . . The absurdity must consist of a disposition that no reasonable person could intend. . . . [And] [t]he absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error (e.g., losing party instead of winning party)"). In the criminal context, a court's reckless implementation of the absurdity doctrine could deprive individuals of the right to rely on the language of statutes as notice of what the law requires and proscribes. See Dufresne v. Baer, 744 F.3d 1543, 1548 (11th Cir. 1984) ("The ex post facto clause operates to ensure that a citizen's fair notice as to what acts are criminal will not be changed after the citizen acts in reliance on that notice."). 19 reexamine a prior panel decision regarding the interpretation of a statute). In instances where the recent controversy rule is applied to give effect to a legislature's subsequent pronouncement of intent that is not supported by the version of the statute that was in effect at the time of its alleged violation, the rule is merely retroactivity by another name. However, courts of this state have instead characterized the recent controversy rule as a method of statutory interpretation of the pre-amendment version of a statute. See Leftwich, 148 So. 3d at 83 (citing Lowry, 473 So. 2d at 1250); Madison at Soho II, LLC, 198 So. 3d at 1116–17 ("The Association asks us to revisit our prior construction of the pre-amended [statute], not to retroactively apply a newer version of [the statute]. Because we are applying the legislature's amendment, which clarified the legislature's intent in a prior version of a statute after a recent controversy, we do not apply retroactivity principles here. . . . [W]e have established that statutory construction, not retroactive application, is the task before us." (emphasis added) (citations omitted)). 20  In other words, the recent controversy rule purports to use the statute's subsequent legislative history as a guide for determining the legislature's intent in the pre-amendment version of the statute. See Leftwich, 148 So. 3d at 83; Madison at Soho II, 198 So. 3d at 1116–17. To the extent that this methodology is employed in abrogation of the meaning of the text of a pre-amendment version of a statute, the rule is inconsistent with our charge as members of the judicial branch. "In determining the meaning of a statute, we adhere to the supremacy-of-the-text principle—a principle recognizing that '[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.' " Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021) (alteration in original) (emphasis added) (quoting Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953, 958 (Fla. 2020)); CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs of Gendron, 198 So. 3d 3, 9 (Fla. 2d DCA 2015) ("[I]t is this court's role to apply the law as written . . . ."). The 2019 pre-amendment version of section 943.0435 applies in this case. See Allen v. State, 324 So. 3d 920, 925 n.5 (Fla. 2021) ("[I]t is firmly established law that the statutes in effect at the time 21 of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed."). This court correctly concluded in James that the ordinary meaning of the pre-amendment section 943.0435 provides that a person who has been convicted of a qualifying offense is not required to register as a sexual offender until he has been released from the entire sanction for the conviction of a sexual offense, including payment of all fines imposed. James, 298 So. 3d at 92. The majority relies on the recent controversy rule to improperly implement a retroactive change to the plain and ordinary meaning of the text of a statute as it read at the time of the alleged crime. The plain and ordinary meaning of the language of the statute in context, as it would be understood when it was enacted, is the law. See S.C. v. State, 224 So. 3d 249, 250 n.3 (Fla. 3d DCA 2017) ("[T]he terms of a statute should be given their plain and ordinary meaning as they were understood at the time of enactment."); cf. Advisory Op. to Governor re Implementation of Amend. 4, the Voting Restoration Amend., 288 So. 3d 1070, 1081–82 (Fla. 2020) (applying the "natural and popular meaning" of a phrase 22 in a constitutional provision (quoting Wilson v. Crews, 34 So. 2d 114, 118 (1948))). Courts may not apply the law in derogation of that meaning. See, e.g., MRI Assocs. of Tampa v. State Farm Mut. Auto. Ins. Co., 334 So. 3d 577, 583 (Fla. 2021) ("[Courts] are . . . bound by the plain meaning of the text of the provisions of [a statute]."); Mesen v. State, 271 So. 3d 164, 167 (Fla. 2d DCA 2019) ("Courts must afford statutory language 'its plain and ordinary meaning, giving due regard to the context within which it is used.' " (quoting Hampton v. State, 103 So. 3d 98, 110 (Fla. 2012))). The recent controversy rule's ostensible deference to the legislative branch and the text of its most recent pronouncement belies the doctrine's potential practical effect—usurpation of the authority of the legislative branch. While implementation of the recent controversy doctrine deceptively defers to a subsequent legislative pronouncement, it can be used to usurp the authority of the legislature that enacted the text of the applicable version of the statute and supplant those words with an expression of more recent legislative will that is potentially in derogation of the text. Here, that more recent expression of legislative will is an extratextual source that is contrary to the ordinary meaning of the 23 text as it was enacted by representatives and senators that voted on and passed Senate Bill 958 in 1997. Cf. Advisory Op. to Governor re Implementation of Amend. 4, 288 So. 3d at 1078 ("[S]hift[ing] the focus of interpretation from the text and its context to extraneous considerations . . . can result in the judicial imposition of meaning that the text cannot bear . . . ."). Just as imposition of a judge's perception of what the law should say instead of what the text means would be a violation of the supremacy of the text principle as well as the separation of powers, see Villanueva v. State, 200 So. 3d 47, 52 (Fla. 2016) (explaining that courts "are not at liberty to add to a statute words that the Legislature itself has not used in drafting that statute" (citing Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 512 (Fla. 2008))), adoption of a subsequent legislature's pronouncement of intent as to what a law should have said when it was enacted in the past instead of what it actually did say is likewise a violation of the supremacy of the text principle and separation of powers, see State v. Lewars, 259 So. 3d 793, 798 (Fla. 2018) ("[T]he courts of this state lack the 'power to construe an unambiguous statute in a way which would extend, modify, or limit[] its express terms or its reasonable and obvious implications.' 24 Such a construction 'would be an abrogation of legislative power.' " (second alteration in original) (citations omitted)). Just as in the former, the judge in the latter scenario is applying something other than the ordinary meaning of the text enacted by the legislature that drafted and enacted the language of the pre-amendment statute. See Advisory Op. to Governor re Implementation of Amend. 4, 288 So. 3d at 1078 ("The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means." (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012))). While the legislature may enact laws with retroactive effect, retroactive effect is applied with circumspection, see Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269, 279 (Fla. 1st DCA 2012), and retroactive effect is limited by the state and federal constitutions, see R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc., 869 So. 2d 1210, 1215 (Fla. 2d DCA 2004) ("If the statute is construed as being properly given retroactive effect, it must . . . be determined if such application is inconsistent with any constitutional limitation."); see also Scalia & Garner, supra, at 261–62 ("As a general, almost invariable rule, a legislature makes law for the 25 future, not for the past. Judicial opinions typically pronounce what the law was at the time of a particular happening. Statutes, by contrast, typically pronounce what the law becomes when the statutes take effect. . . . [A statute's] retroactive operation may, but will not necessarily, violate one of the Ex Post Facto Clauses, one of the Due Process Clauses, the Takings Clause, or the Obligations of Contracts Clause of the United States Constitution, or similar provisions in state constitutions."). The prohibition of ex post facto criminal laws is one such constitutional limitation on retroactive application. See art. I, § 9, cl. 3, U.S. Const. ("No . . . ex post facto Law shall be passed."); art. I, § 10, cl. 1, U.S. Const. ("No State shall . . . pass any . . . ex post facto Law."); art. I, § 10, Fla. Const. ("No . . . ex post facto law . . . shall be passed."). Application of the recent controversy rule would be contrary to our obligation to "apply the law as we find it" in the pre-amendment version of section 943.0435 that was in effect at the time of the alleged offense. See Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021)). Under the pre-amendment section 943.0435, the defendant was not subject to the obligation he is alleged to have 26 criminally failed to perform. See James, 298 So. 3d at 92. Application of the legislature's amendment that explicitly rejected the James opinion such that it would govern the application of the pre-amendment section 943.0435, see ch. 2021-156, § 1, Laws of Florida, would violate the constitutional prohibition of ex post facto laws. The ex post facto clause only applies to criminal laws and proceedings; whether a statute is civil or criminal for purposes of the ex post facto clause is a question of statutory interpretation. Griffin v. State, 980 So. 2d 1035, 1036 (Fla. 2008). "In evaluating whether a law violates the ex post facto clause, a two-prong test must be applied: (1) whether the law is retrospective in its effect; and (2) whether the law alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Id. Here, the new law is criminal for purposes of the ex post facto clause, has a retroactive effect, and alters the definition of criminal conduct by altering the time at which the violated duty arises. This court, other Florida courts, and federal courts have concluded that the Florida sex offender registration statute and similar statutes in other jurisdictions are not criminal for ex post 27 facto purposes. See, e.g., Givens v. State, 851 So. 2d 813, 814–15 (Fla. 2d DCA 2003); Smith v. Doe, 538 U.S. 84, 95 (2003) (analyzing Alaska's sexual offender registration act). However, these cases are distinguishable from the present case. In Givens, Smith, and other similar cases, the courts were determining whether retroactive application of the registration requirement on individuals who had been convicted of qualifying sex offenses before the enactment of the applicable sexual offender registration act violated the ex post facto clause. See Givens, 851 So. 2d at 814; Smith, 538 U.S. at 91. The courts determined that the registration requirement itself was civil or nonpunitive; therefore, the courts concluded that retroactive application of the registration requirements did not violate the ex post facto clause. Givens, 851 So. 2d at 814–15; Smith, 538 U.S. at 96, 105–06. In the present case, however, the operable portion of the statute is not the civil, nonpunitive registration requirement itself but rather the criminal prohibition on failing to fulfill that requirement. See § 943.0435(14)(c)4 (providing that it is a third- degree felony for a sexual offender to fail to report as required by section 943.0435). This portion of the statute is criminal for 28 purposes of the ex post facto clause because it is punitive in nature—it punishes those who fail to register as required—and conviction under this section would place an affirmative restraint on an individual's liberty. Cf. Goad v. Fla. Dep't of Corr., 845 So. 2d 880, 884 (Fla. 2003). While the registration requirement could be characterized as civil, the provision imposing a criminal sanction on failure to register is criminal.8 As such, retroactive application of 8 The sex offender registration statute is not unique with respect to having civil, nonpunitive aspects and criminal, punitive aspects. For example, section 322.57 governs testing requirements for issuance of licenses for certain vehicles—commercial vehicles (double and triple trailers, passenger vehicles, and vehicles used to transport hazardous materials), motorcycles, and tanks. Most of its provisions specify the additional tests and endorsements required for the issuance of such licenses in addition to the other driver licensing requirements in chapter 322 and outline licensing requirements for nonresidents and military servicemembers. See § 322.57(1)–(4), Fla. Stat. (2022). However, section 322.57(5) provides that driving a commercial vehicle without a valid commercial license is a misdemeanor and that driving a commercial vehicle with an expired commercial license is a nonmoving violation. § 322.57(5)(a)–(b). In general, section 322.57 is a civ