STATE OF FLORIDA

v.

NYYA JAHNAI HERARD

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D2023-3607 Lower Tribunal No. 2023-CF-003059-O _____________________________

STATE OF FLORIDA, Appellant, v. NYYA JAHNAI HERARD, Appellee. _____________________________

Appeal from the Circuit Court for Orange County. Kevin B. Weiss, Judge.

August¹⁵, 2025

GANNAM, J.

The State of Florida appeals the dismissal of an information charging Nyya Jahnai Herard with carrying a concealed firearm without a license under section 790.01, Florida Statutes (2022). The trial court retroactively applied the 2023 amendment to the concealed carry statute redefining the crime to require the State to prove not only the carrying of a concealed firearm without a license, but also ineligibility for a license. Because it was error to apply the 2023 amendment retroactively, we reverse.

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I. The case and facts

Following a traffic stop on March 8, 2023, Orlando Police Department officers arrested Herard for carrying a concealed firearm without a license. The State charged Herard by information with violation of section 790.01(2), Florida Statutes (2022) (“[A] person who is not licensed . . . and who carries a concealed firearm on or about his or her person commits a felony of the third degree . . . .”). An amendment to section 790.01 took effect on July¹, 2023, under which it is not a crime for a person to carry a concealed firearm without a license if the person “otherwise satisfies the criteria for receiving and maintaining such a license.” § 790.01(1)(b), Fla. Stat. (2023). Herard moved to dismiss the information, attesting that she met the criteria of the amended statute.¹ Herard argued the concealed carry amendment was excepted from the general prohibition against retroactive application of amendments to criminal statutes in section 775.022(3), Florida Statutes (2023), because, under subsection (4) of the statute, amendments reducing the punishment for violating a criminal statute must be applied retroactively. The State opposed dismissal under subsection (4) of section 775.022, arguing that the concealed carry amendment changed the elements of a section 790.01 violation, not the punishment for a violation. The State also argued that subsection

3 (5) of section 775.022, permitting retroactive application of certain defenses to criminal statutes, did not apply for the same reason—the concealed carry amendment redefined the elements of the crime, not a defense to the crime. The trial court granted dismissal, concluding that the concealed carry amendment applied retroactively under subsection (4) of section 775.022 because the amendment “reduced the punishment from a third-degree felony punishable by up to five years in prison to no punishment at all for those individuals who are eligible to receive and maintain a license to conceal carry pursuant to the enumerated criteria.” The State timely appealed.

II. Questions presented and standard of review

The State seeks reversal on the ground that the trial court erred in retroactively applying the concealed carry amendment under subsection (4) of section 775.022. The State also argues that subsection (5) of section 775.022 provides no alternative ground for “tipsy coachman” affirmance. See, e.g., Wright v. State, 393 So. 3d 229, 230 & n.2 (Fla. 6th DCA 2023). Both arguments present questions of law we review de novo. See State v. Tacher, 84 So. 3d 1131, 1132 (Fla. 3d DCA 2012). Answering these questions requires our interpretation of section 775.022, Florida’s statutory “savings clause” governing retroactive application of amendments to criminal statutes, and application of the savings clause to the 2023 amendments to section 790.01, Florida’s criminal concealed carry statute. Without

III. Analysis

A. The statutory savings clause

Preceding the 2019 enactment of Florida’s statutory savings clause, section 775.022, voters in the 2018 General Election amended Florida’s constitutional savings clause, article X, section 9. As amended, the constitutional savings clause provides, “Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.” Art. X, § 9, Fla. Const. Prior to the

6 (c) A prior penalty, prior forfeiture, or prior punishment incurred or imposed under the statute. (4) If a penalty, forfeiture, or punishment for a violation of a criminal statute is reduced by a reenactment or an amendment of a criminal statute, the penalty, forfeiture, or punishment, if not already imposed, must be imposed according to the statute as amended. (5) This section may not be construed to limit the retroactive effect of any defense to a criminal statute enacted or amended by the Legislature in a criminal case that has not yet resulted in the imposition of a judgment or sentence by the trial court or an appellate decision affirming a judgment or sentence of the trial court. § 775.022(3)–(5), Fla. Stat.2

2 In addition to amendments, section 775.022 also addresses “reenactment” of criminal statutes. Reenactment may include (we do not decide) reenactment to cure a constitutional single-subject violation, see, e.g., Ch. 2002-212, Laws of Fla. (“WHEREAS, the Legislature . . . has prepared five separate bills to reenact selected provisions of chapter 99–188, Laws of Florida, all of which relate to the single general issue of sentencing in criminal cases . . . .”), reenactment of a repealed or expiring statute, see, e.g., § 1004.343, Fla. Stat. (2024) (“This section is repealed July¹, 2026, unless reviewed and reenacted by the Legislature before that date.”), or the periodic, bulk reenactment of all Florida statutes for codification and publication in the official Florida Statutes under the Legislature’s permanent statutory revision plan, see §§ 11.241, 11.242, Fla. Stat. (2024); Salters v. State, 758 So. 2d 667, 670 (Fla. 2000) (“[T]he Legislature amends sections 11.2421, 11.2422, 11.2424, and 11.2425, Florida Statutes, to prospectively adopt as the official statutory law of Florida those portions of the statutes that are carried forward from the preceding regular edition of the Florida Statutes.”). Until 1999, this bulk reenactment occurred every odd year in “the biennial adoption process.” Salters, 758 So. 2d at 670; see also, e.g., Ch. 1999-10, Laws of Fla. Since 2003, however, the reenactment has occurred every year with the passage of an annual adoption act. See Preface, Fla. Stat. (2024); Chs. 2024-1, 2023-12, 2022-3, 2021-50, 2020-1, 2019-2, 2018-109, 2017-2, 2016-8, 2015-1, 2014-16, 2013-13, 2012-4, 2011-2, 2010-3, 2009-19, 2008-3, 2007-7, 2006-3, 2005-1, 2004-4, 2003-25, Laws of Fla.

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C. Application of the statutory savings clause to the 2023 concealed carry amendment 1. Application of savings clause subsection (4) The trial court held the 2023 concealed carry amendment applicable to Herard’s prosecution, retroactively, under subsection (4) of section 775.022. Subsection (4) requires retroactive application of an amendment to a criminal statute reducing the punishment for a violation of the statute if punishment has not yet been imposed. § 775.022(4), Fla. Stat. The concealed carry statute, § 790.01, Fla. Stat., is a “criminal statute” under the savings clause, defined broadly as “a statute, whether substantive or procedural, dealing in any way with a crime or its punishment, defining a crime or a defense to a crime, or providing for the punishment of a crime.” § 775.022(2). Thus, subsection (4) of the savings clause applies if the amendment to section 790.01 reduced the punishment for a violation of section 790.01. Both before and after the amendment to section 790.01, however, the crime of carrying a concealed firearm was “a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” § 790.01(2), Fla. Stat. (2022); § 790.01(3), Fla. Stat. (2023) (same). The amendment redefined a violation of the statute by adding an element, but it did not reduce the punishment for a violation. Thus, subsection (4) of section 775.022 does not except the 2023 concealed carry amendment from the retroactivity prohibition of section 775.022(3). The trial court erred in dismissing the information under subsection (4).

3 There is a general sense in which a “defense” to a crime could be an affirmative defense or simply the negation of an element of the crime by disproving or casting doubt on it. See generally State v. Green, 400 So. 2d 1322, 1323 n.1 (Fla. 5th DCA 1981) (“A valid defense can either establish an affirmative defense or negate a prima facie element.”); State v. Cohen, 568 So. 2d 49, 51–52 (Fla. 1990) (“An ‘affirmative defense’ is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, ‘Yes, I did it, but I had a good reason.’”). The text of subsection (5)—i.e., “any defense . . . enacted or amended by the Legislature”—includes statutory affirmative defenses, but we do not hold in this case that subsection (5) excludes statutory defenses, if any, that do not meet the common definition of an affirmative defense.⁴ We take no issue with the dissent’s seriatim definitions of “any,” “defense,” and “criminal statute.” (See infra dissenting op. Section II.B.) To be sure, we quote in full and apply the definition of “criminal statute” (see supra Part III.C.¹), and we explain the different senses of “defense” (see supra note 3). The dissent labors in

IV. Conclusion

The 2018 amendment to the Florida constitutional savings clause allows the Legislature to decide when an amendment to a criminal statute is retroactive.6 In the absence of express legislative provision, the statutory savings clause prohibits retroactive application of an amendment redefining the elements of a crime, § 775.022(3), requires retroactive application of an amendment reducing the punishment for a crime, § 775.022(4), and does not prohibit the retroactive application of an amendment enacting or amending a statutory defense to a crime, § 775.022(5). The 2023 amendment to the concealed carry statute did not provide any new statutory defense to the crime of carrying a concealed firearm. Nor did it reduce the punishment for the crime. Rather, the amendment redefined the crime itself by adding a new element that the State must prove beyond a reasonable doubt to secure a conviction. Thus, neither subsection (4) nor subsection (5) of section 775.022 applies to the amendment, and section 775.022(3) otherwise prohibits retroactive

6 This legislative power is subject to the constitutional ex post facto clauses that “prohibit the State of Florida from retroactively changing the definition of a crime to make formerly innocent behavior illegal or increasing the punishment for criminal acts.” State v. Lobato, 394 So. 3d 1219, 1222 (Fla. 6th DCA 2024) (citing Art. I, § 10, Fla. Const.; Art. I, § 9, cl. 3, § 10, cl.¹, U.S. Const.).

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED

______________________________________

WHITE, J., concurring in part, dissenting in part.

I concur with the majority’s conclusion that the trial court erred when it found that section 775.022(4), Florida Statutes, required that the 2023 amendments to section 790.01, Florida Statutes, be applied in this case. However, because I conclude that the 2023 amendments to section 790.01, Florida Statutes, must be applied here pursuant to section 775.022(5), Florida Statutes, I dissent from the majority’s decision to reverse and remand.

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I.

“In interpreting [a] statute, we follow the ‘supremacy-of-text principle’— namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’” Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). The ultimate goal is to reach “a ‘fair reading’ of the text by ‘determining the application of [the] text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.’” Id. at 947 (quoting Scalia & Garner, supra, at 33). We err if we decide what a disputed term or phrase means in isolation without considering context or utilizing interpretive canons. See Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022). “Under the whole-text canon, proper interpretation requires consideration of ‘the entire text, in view of its structure and of the physical and logical relation of its many parts.’” Lab’y Corp. of Am. v. Davis, 339 So. 3d 318, 324 (Fla. 2022) (quoting Scalia & Garner, supra, at 167). A statutory definition of a term is almost always conclusive. See Gov’t Emps. Ins. Co. v. Glassco Inc., 394 So. 3d 1115, 1119 (Fla. 2024) (first citing Greenleaf & Crosby Co. v. Coleman, 158 So. 421, 427 (Fla. 1934); and then citing Scalia & Garner, supra, at 228). Absent a definition in the statute or controlling case law, an appropriate dictionary may be consulted to help ascertain

II.A.

The Legislature has declared that section 775.022 “may not be construed to limit the retroactive effect of any defense to a criminal statute enacted or amended by the Legislature in a criminal case that has not yet resulted in the imposition of a judgment or sentence by the trial court.” § 775.022(5), Fla. Stat. (2023) (emphasis added). Therefore, it is essential to properly determine the meaning of “any,” “defense,” and “criminal statute” to reach a fair reading of section 775.022(5).

II.B.

The term “any” is not defined in section 775.022. The Florida Supreme Court, however, stated that “[t]he word ‘any’ is defined as ‘one, no matter what one: every’ or ‘all.’” McNeil v. State, 215 So. 3d 55, 59 (Fla. 2017) (quoting Webster’s Third New International Dictionary 97 (1993)). McNeil’s definition of “any” is properly used in this case because a substantially different definition is not contained in a Florida Supreme Court case or dictionary that existed when the Legislature enacted section 775.022.

Although neither the Legislature nor the Florida Supreme Court defined “defense,” a tried-and-true legal dictionary defined it as “[a] defendant’s stated reason why the plaintiff or prosecutor has no valid case.” Defense, Black’s Law

Thus, “any defense” includes every kind of reason why the prosecutor has no case against the defendant. That broad scope necessarily includes every type of defense that disputes the prosecutor’s proof of guilt or proves that the defendant is not guilty, as to the elements of the crime or otherwise. See, e.g., Failure-of-Proof Defense, Black’s Law Dictionary (11th ed. 2019) (“The defense that a party’s proof does not establish a fact essential to a claim”); General Defense, Black’s Law Dictionary (11th ed. 2019) (“A denial in broad terms of at least one element in a complaint or charge.”); Legal Defense, Black’s Law Dictionary (11th ed. 2019) (“A complete and adequate defense in a court of law.”); see also State v. Green, 400 So. 2d 1322, 1323 & n.1 (Fla. 5th DCA 1981) (a defendant may use a rule 3.190(c)(4) motion to “establish a valid defense” and “[a] valid defense can either establish an affirmative defense or negate a prima facie element.”).

Unlike the terms “any” and “defense,” the term “criminal statute” has a statutory definition: “a statute, whether substantive or procedural, dealing in any way with a crime or its punishment, defining a crime or a defense to a crime, or providing for the punishment of a crime.” § 775.022(2), Fla. Stat. (2023). That is sweeping

II.C.

In view of all the foregoing, “any defense to a criminal statute” includes every basis for a challenge to a criminal charge, including a challenge relating to one or more of the statutory elements or asserting a right to engage in the allegedly illegal activity. It follows that “any defense to a criminal statute” is “enacted or amended by the Legislature” when, inter alia, a statutory change is made that inserts a new element within the definition of the crime or expressly authorizes the prohibited conduct. If such statutory change is effective before a judgment or sentence is imposed or affirmed, then the defendant may deploy it in his or her case. See § 775.022(5), Fla. Stat. (2023).

III.A.

That is exactly what happened here. The Legislature changed the definition of the crime by adding an element, i.e., the person fails to meet the specified statutory criteria for receiving and maintaining a license to carry a concealed firearm. Compare § 790.01(3), (4), Fla. Stat. (2023), with § 790.01(2), Fla. Stat. (2022). The Legislature also created an express authorization to carry a concealed firearm that

III.B.

The majority disagrees. They make no effort, however, to ascertain the meaning of the key terms in section 775.022(5). Their opinion is devoid of reference to a definition of “any” or “defense” in a Florida Supreme Court case or dictionary. Glaringly absent from Part III.C.2. of their opinion is the statutory definition of “criminal statute.” Unconstrained by the actual meaning of the key terms, the majority considers them in isolation or out of context and ignores or limits their scope.⁷ Therefore, their interpretation of “any defense to a criminal statute enacted

7 The majority states that they “take no issue” with my definitions of the key terms, Maj. Op., note⁴, but they do not apply them in their interpretation of section

IV.

Even if the majority’s interpretation is reasonable, my interpretation “is [] favored by another canon of statutory construction, the rule of lenity.” State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016). “[W]hen criminal statutes are subject to competing, albeit reasonable, interpretations, they must be ‘strictly construed . . . most favorably to the accused.’” Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007) (quoting § 775.021(1), Fla. Stat. (2002)). This extremely important statutory canon is codified in section 775.021(1), Florida Statutes (2012), which provides that, “[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language

775.022(5). Instead, they disregard or narrow those terms and consider their solimited “defense” with “enacted” in isolation and out of context. For example, “criminal statute” includes “a statute defining a crime,” and “any defense to a statute defining a crime” is any basis for a challenge to the statutory elements of a crime. An “affirmative defense,” however, “does not concern itself with the elements of the offense at all; it concedes them.” State v. Cohen, 568 So. 2d 49, 51–52 (Fla. 1990). Therefore, “any defense to a statute defining a crime” excludes an “affirmative defense.” The only effective way for the Legislature to enact or amend “any defense to a statute defining a crime” is to add or revise an element within the statutory definition. See supra Section II.B., Section II.C. By rejecting that, the majority renders “any defense to a statute defining a crime enacted or amended by the Legislature” useless and runs afoul of the canon against surplusage they invoke. See Maj. Op., Part III.C.2. (first citing Hechtman, 840 So. 2d at 996; then citing Johnson, 485 So. 2d at 411; and then citing Scalia & Garner, supra, at 174–79). Furthermore, the majority fails to explain why section 775.022(5) does not permit the retroactive application of the brand-new express authorization in section 790.01(1), which is independent of the definition of the crime and its elements in section 790.01(3), (4). See supra Section II.C., Section III.A.

Weeks, 202 So. 3d at 8. Although the rule of lenity is a “canon of last resort,” it is a “fundamental tenet of Florida law” and “not just an interpretative tool, but a statutory directive.” Id. (first quoting Polite, 973 So. 2d at 1112; and then quoting Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008)). Here, section 775.022(5)’s undefined terms (e.g., “any” and “defense”), defined term (i.e., “criminal statute”), and disputed phrase (“any defense to a criminal statute enacted or amended by the Legislature”) must be interpreted “most favorably” to Herard. § 775.021(1), Fla. Stat. (2023); see Weeks, 202 So. 3d at 4–5, 8–9 (construing the “felon-in-possession” statute, including a defined term (“antique firearm”) and an undefined term (“replica”) in favor of the defendant pursuant to the rule of lenity); see also id. at 10–11 (Canady, J., concurring) (finding that the rule of lenity precluded the narrow interpretation of “antique firearm” and “replica” advocated by the State). Therefore, my interpretation of section 775.022(5) carries the day, and the trial court properly dismissed the information against Herard.

For all the foregoing reasons, I would affirm the trial court’s order granting the motion to dismiss. _________________________________

8 Section 775.021(1) has remained unchanged.

Melissa Vickers, Public Defender, and Joshua Sinclair, Assistant Public Defender, Orlando, for Appellee.