123 So. 3d 114
Fla. Dist. Ct. App.2013Background
- Macchione, with a long criminal history and mental illness, was convicted on multiple charges including a 2009 section 836.10 offense for threatening communications.
- He challenged only the 2009 section 836.10 charge, arguing that electronic communications (Twitter and YouTube) were not prohibited by the statute as it existed in 2009.
- The 2010 amendment to section 836.10 added electronic communications to the prohibited category, effective October 1, 2010.
- The State argues the 2010 amendment clarified the original scope and did not create a new offense, while Macchione argues it is a substantive change and retroactive application would violate ex post facto protections.
- The trial court denied the challenge to the 2009 charge; on appeal, the issue was dispositive of the section 836.10 charge, leading to reversal of that conviction and remand for corrected judgment.
- The court ultimately held that the 2009 statute did not cover Twitter/YouTube communications, and the 2010 amendment is a substantive change to be applied prospectively, requiring reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 amendment to 836.10 is a substantive change. | Macchione argues the 2010 amendment is substantive, applying prospectively and not retroactively to his 2009 conduct. | State contends the amendment clarifies that electronic communications were intended to be within the statute all along. | Amendment is substantive; retroactive application would violate ex post facto. |
| Whether the 2009 version of 836.10 covers electronic communications. | Macchione contends Twitter/YouTube posts fall outside the 1913/2009 wording of ‘letter’ or ‘inscribed communication.’ | State contends the original statute encompassed forms of communication now recognized as electronic. | Not covered by the 2009 version; electronical communications fall outside the 2009 text. |
| Whether the amendment should be retroactively applied under ex post facto standards. | Lenity and retroactivity concerns require strict construction and retroactive limits. | Amendment clarifies existing law and retroactivity is appropriate if authorized by legislative intent. | Amendment is substantive and prospective; retroactive application would violate ex post facto. |
Key Cases Cited
- Shenfeld v. State, 44 So.3d 96 (Fla.2010) (ex post facto categories framework)
- Stogner v. California, 539 U.S. 607 (U.S. 2003) (retroactivity four-category test)
- Cooper, 701 So.2d 543 (Fla.1997) (amendment timing cannot clarify original intent after long span)
- Laforet, 658 So.2d 55 (Fla.1995) (ten-year rule for amendments as clarifications)
- Ramcharitar v. Derosins, 35 So.3d 94 (Fla.3d DCA 2010) (timing of amendments and legislative intent considerations)
- Kasischke v. State, 991 So.2d 808 (Fla.2008) (legislative intent and staff analyses considerations)
- Earth Trades, Inc. v. T & G Corp., 108 So.3d 580 (Fla.2013) (use of bill title in determining intent)
- Hassen v. State Farm Mutual Automobile Insurance Co., 674 So.2d 106 (Fla.1996) (title as indicator of legislative intent)
- GTC, Inc. v. Edgar, 967 So.2d 781 (Fla.2007) (staff analyses and legislative intent considerations)