Retroactive Application

Florida’s Attitude Toward Retroactive Application of New Laws and Ex-Post Facto Laws

Over the last year, there have been significant changes made to Florida’s criminal and civil code. Generally, these types of changes have an impact on those who have been the “losers” under the law; those criminal defendants, for example, who are serving more time in prison due to a sentencing requirement that no longer applies to those who commit the exact same crime under a different sentencing regime. It is important to speak with an experienced criminal defense attorney who understands how retroactive application can aid you or a loved one during criminal proceedings. Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

The Issue of Retroactive Application

When a new law is created and it impacts the rights and privileges of citizens, there is always an examination as to whether this law is an edict that applies from the moment it has become in effect, or if it is a standard that should apply retroactively to those cases in the past that were under the previous version of the law. Retroactive application is extremely important and can make the difference between life and death. To determine retroactive application requires a serious and extensive analysis as to the effect of the new law not only on criminal defendants going forward, but whether it is a violation as to the due process rights of those who are suffering under the previous law.

Florida Supreme Court’s Attitude on the Standard for Retroactive Application

According to the Florida Supreme Court in a decision that it published in October of 2016, a change in the law will only apply retroactively when three prongs are met:

  • The change is made at the highest level - at the Florida Supreme Court or the United States Supreme Court;
  • The change is constitutional;
  • That the change signifies a development that has fundamental significance.

To determine whether a change is a development is fundamentally significant, it must be established that the change is either so fundamental and of the magnitude that it compels the application retroactively or the change is the type to go beyond the state’s authority to regulate certain conduct or apply certain penalties.

Ex Post Facto Laws

There are, however, situations where even if the change is grandiose in the criminal justice system, it is against the due process rights of citizens to apply retroactively. This is known as ex post facto laws. There are four types of ex post facto laws:

  • A law that makes certain behavior criminal when it was not criminal before the law was enacted; for example, a law passed that makes chewing gum illegal,
  • A law that makes a crime more severe than before the change; for example, a law that makes stealing a 99-cent candy bar a felony,
  • A law that increases the imposed penalties for a crime; for example, a law that makes embezzling money a capital felony with a possible death penalty, and
  • A law that changes the Rules of Evidence to admit less evidence to obtain a conviction than was previously permitted for the same offense; for example, a law that now allows character evidence that is prejudicial to prove that the criminal defendant committed a crime.

The purpose behind regulating ex post facto laws is to make sure that the Florida Legislature does not add new punishments to old crimes.

Retroactive Application and Procedural/Substantive Laws

Finally, the determination of whether a law may be applied retroactively is based on whether that change in law is procedural or substantive. Generally, substantive changes to the law are found to affect cases going forward, while a procedural change in law may apply retroactively where the cases are still pending. Substantive law in the criminal justice system applies generally to any statute that deems which behaviors and conduct are crimes and any punishments prescribed to these offenses. Procedural laws dictate the steps and regulations that determine how a criminal defendant is to be punished for his/her crimes.

Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.