State v. Klayman

• Decision Date: 14 November 2002
• Docket Number: No. SC00-1723.,SC00-1723.
• Citation: 835 So.2d 248
• Parties: STATE of Florida, Petitioner, v. David KLAYMAN, Respondent.
• Court: Florida Supreme Court

835 So.2d 248

STATE of Florida, Petitioner, v. David KLAYMAN, Respondent.

No. SC00-1723.

Supreme Court of Florida.

November 14, 2002.

Rehearing Denied January 10, 2003.

Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and August A. Bonavita, Assistant Attorney General, West Palm Beach, FL, for Petitioner.

R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Respondent.

SHAW, J.

We have for review Klayman v. State, 765 So.2d 784 (Fla. 4th DCA 2000), wherein the district court certified the following question:

Should the supreme court's decision in Hayes v. State, [750 So.2d 1 (Fla.1999)] be retroactively applied?

Klayman, 765 So.2d at 785. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

I. FACTS

The relevant facts are set forth in the district court opinion, which provides in part:

David Klayman appeals the trial court's denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He contends that the court erred in failing to apply the supreme court's recent decision of Hayes v. State, 750 So.2d 1 (Fla. 1999), to his conviction of trafficking in hydrocodone....

In Hayes, the supreme court quashed this court's decision in the underlying case of State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), quashed, 750 So.2d 1 (Fla.1999), and held that the drug trafficking statute (section 893.135(1)(c)1, Florida Statutes (Supp. 1996)) did not apply to possession of hydrocodone in amounts under fifteen milligrams per dosage unit. Appellant argues that the supreme court's decision in Hayes should be given retroactive application because the effect of the decision has constitutional ramifications for those persons whose sentence was rendered or upheld pursuant to State v. Baxley, 684 So.2d 831, 832-33 (Fla. 5th DCA 1996), and our decision in State v. Hayes.

Klayman, 765 So.2d at 784-85. The district court agreed with Klayman, reversed the trial court's ruling, and remanded for an evidentiary hearing to determine the continued validity of Klayman's sentence in light of Hayes. The district court certified the above question and the State petitioned for review before this Court.

II. HAYES V. STATE

The Court in Hayes v. State, 750 So.2d 1 (Fla.1999), was confronted with the following question: whether a person who fraudulently procured forty tablets of Lorcet, a prescription pain relief medication containing a mixture of acetaminophen and hydrocodone, can be convicted of trafficking if the hydrocodone in the mixture was not a Schedule I or II drug. The trafficking statute prohibited the purchase of four grams or more of "any morphine, opium, oxycodone, hydrocodone, hydromorphone... as described in [Schedule I] or [Schedule II]" or four grams or more of "any mixture containing any such substance."¹ Prior to Hayes, Florida district courts were in disagreement as to the meaning of the word "such" in the phrase "any mixture containing any such substance." The Fourth and Fifth District Courts of Appeal had held that "such" referred to any of the drugs enumerated in the statute (i.e., "morphine, opium, oxycodone, hydrocodone, hydromorphone"), regardless of their chemical forms.² The First and Second District Courts of Appeal, on the other hand, had held that "such" referred to the enumerated drugs but only when those drugs are in the chemical forms described in Schedules I and II.³

This Court in Hayes analyzed the language in the trafficking statute, endorsed the view of the First and Second District Courts of Appeal, and held that the word "such" referred to the enumerated drugs only in the chemical forms described in Schedules I and II. The Court then determined that, under the applicable drug classification statutes, hydrocodone may be either a Schedule II or III drug, depending on the dosage unit, and that the hydrocodone in the mixture possessed by Hayes was a Schedule III drug. Because the mixture possessed by Hayes did not contain a Schedule I or II drug, she could not be convicted of trafficking.⁴

The basic holding of Hayes is that the trafficking statute, since the time of enactment, was intended to apply only to Schedule I and II drugs or to mixtures containing Schedule I or II drugs. The question posed in the present case is whether that holding should be applied to final cases wherein the lower courts construed the statute differently and imposed trafficking convictions based on mixtures that did not contain a Schedule I or II drug. This issue is a pure question of law, subject to de novo review.⁵

III. CLARIFICATIONS IN THE LAW

The United States Supreme Court in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), held that whereas a change in the law may be analyzed in terms of retroactivity, a clarification in the law does not implicate the issue of retroactivity. Petitioner Fiore was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit, even though the Commonwealth conceded that he in fact possessed a permit.⁶ The state supreme court declined review and the conviction became final. Subsequently, the state supreme court reviewed the case of Fiore's codefendant, Scarpone, and held, on identical facts, that the statute had not been violated. The United States Supreme Court granted certiorari in Fiore's case and, after soliciting a response from the Pennsylvania Supreme Court, ruled as follows:

The Pennsylvania Supreme Court's reply specifies that the interpretation of [the statute] set out in Scarpone "merely clarified" the statute and was the law of Pennsylvania—as properly interpreted—at the time of Fiore's conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.

This Court's precedents make clear that Fiore's conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, necessarily concedes that it did not prove he failed to possess one.

The simple, inevitable conclusion is that Fiore's conviction fails to satisfy the Federal Constitution's demands.

Fiore, 531 U.S. at 228-29, 121 S.Ct. 712 (citations omitted).

It thus is clear under Fiore that, if a decision of a state's highest court is a clarification in the law, due process considerations dictate that the decision be applied in all cases, whether pending or final, that were decided under the same version (i.e., the clarified version) of the applicable law. Otherwise, courts may be imposing criminal sanctions for conduct that was not proscribed by the state legislature.

Although Florida courts have not previously recognized the Fiore distinction between a "clarification" and "change," we conclude that this distinction is beneficial to our analysis of Florida law. Previously, this Court analyzed such cases strictly under Witt v. State, 387 So.2d 922 (Fla.1980), and used the term "change" broadly to include what in fact were both clarifications and true changes.⁷ As explained in Fiore, however, a simple clarification in the law does not present an issue of retroactivity and thus does not lend itself to a Witt analysis.⁸ Whereas Witt remains applicable to "changes" in the law, Fiore is applicable to "clarifications" in the law.

IV. THE PRESENT CASE

In an effort to determine whether Hayes should be applied retroactively, we must ask, is Hayes a "clarification" or "change" in the law? A clarification is a decision of this Court that says what the law has been since the time of enactment. To determine whether a decision clarifies a statute, we first look to the decision itself to discern its intent. If the decision is silent or ambiguous on this point, we then look to the underlying statute to discern its intent. Where the Legislature cedes no discretion to the courts either directly⁹ or indirectly¹⁰ but instead employs definitive language that ordinarily requires no judicial construction, the Legislature intends that the statute be applied as enacted. A decision by this Court confirming the original intent is a clarification of extant law.

Hayes is such a clarification, because the Legislature, in formulating the trafficking statute, ceded no discretion to the courts either directly or indirectly with regard to the types and quantities of substances proscribed by the statute. Rather, the Legislature defined those properties with specificity at the time of enactment:

(c)1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(1)(b) [i.e., Schedule I] or (2)(a) [i.e., Schedule II], or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as "trafficking in illegal drugs."

§ 893.135(1)(c)1, Fla. Stat. (Supp.1996).¹¹

Each proscribed substance is identified in the statute and then defined in detail in Schedules I and II, which contain exhaustive technical descriptions of illegal drugs. Also, the proscribed quantities are clearly denoted in the...