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

Article Excerpt
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...

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