Time is on my side: four steps to applying the correct law.

• Jurisdiction: United States
• Date: 01 July 2009
• Author: Christian, Brandon R.

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 arguments (5) 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 [section]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 injury (16) 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...