Supreme Court of Florida
                                   ____________

                                   No. SC14-319
                                   ____________

                              WILLIAM R. CREWS,
                                   Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [November 25, 2015]

CANADY, J.

      In this case we are asked to decide a question of law which the First District

Court of Appeal certified to be of great public importance:

      DOES THE STATUTE OF LIMITATIONS FOR “MISCONDUCT
      IN OFFICE” BY A PUBLIC OFFICER OR EMPLOYEE IN
      SECTION 775.15(12)(b), FLORIDA STATUTES, APPLY TO A
      PUBLIC SCHOOL TEACHER?

Crews v. State, No. 1D12-4703 (Fla. 1st DCA Feb. 4, 2014). The district court

held that the statutory provision in question, which extends the statute of

limitations in certain circumstances, applied in this case and on that basis affirmed

Petitioner’s convictions of several offenses. Crews v. State, 

(Fla.

1st DCA 2013). Petitioner seeks review. We have jurisdiction. See art. V,
§ 3(b)(4), Fla. Const. In addition to considering Petitioner’s claim that the district

court erred in holding that the statute applies to public school teachers, we also

consider his alternative argument that the statute in question is inapplicable in this

case because the charged criminal conduct was not connected to the performance

of his duties as a teacher. We hold that the statutory provision applies to public

school teachers and that it applies in this case.

                                        FACTS

      In August 2012, the State filed an information against Petitioner, a public

school teacher, charging him with sexual offenses against minors over the age of

twelve, including eight counts charging second- or third-degree felonies alleged to

have been committed between June 2001 and June 2006.1 Ordinarily these charges

would have been barred by the three-year statute of limitations applicable to

second- and third-degree felonies. See § 775.15(2)(b), Fla. Stat. (2001).2



       1. The crimes involved in this review proceeding are three counts of lewd or
lascivious molestation of a person over the age of twelve and under the age of
sixteen in violation of section 800.04(5)(a), (c)2., Florida Statutes (2006); three
counts of lewd or lascivious exhibition in the presence of a person under the age of
sixteen in violation of section 800.04(7)(a), (c), Florida Statutes (2006); and two
counts of showing obscene material to a minor in violation of section 847.0133,
Florida Statutes (2005).

      2. The statute of limitations that applies to a criminal charge is generally the
one in effect at the time of the conduct giving rise to the charge. See State ex rel.
Manucy v. Wadsworth, 

, 347 (Fla. 1974); Abdullah v. State, 

, 844 (Fla. 5th DCA 2004). Section 775.15(2), Florida Statutes (2001),

                                          -2-
However, the State also charged that when he committed the offenses, Petitioner

was a public employee and that by committing them, he engaged in “misconduct in

office” under section 775.15(3)(b), Florida Statutes (2001).3 Section 775.15(3)(b)

extended the limitation period for offenses “based upon misconduct in office by a

public officer or employee.”4


which remained the same in substance throughout the period when the offenses
were alleged to have taken place, provided as follows:
             (2) Except as otherwise provided in this section, prosecutions
      for other offenses are subject to the following periods of limitation:
             (a) A prosecution for a felony of the first degree must be
      commenced within 4 years after it is committed.
             (b) A prosecution for any other felony must be commenced
      within 3 years after it is committed.
             (c) A prosecution for a misdemeanor of the first degree must be
      commenced within 2 years after it is committed.
             (d) A prosecution for a misdemeanor of the second degree or a
      noncriminal violation must be commenced within 1 year after it is
      committed.

      3. Section 775.15(3)(b) remained unchanged in substance throughout the
period during which the offenses were alleged to have taken place, although it was
readopted as section 775.15(12)(b), Florida Statutes, in 2005. See ch. 2005-110,
§ 1, Laws of Fla.

       4. The relevant language of section 775.15(12)(b), Florida Statutes (2015),
which in substance reads the same as the provision did at the time of the events in
this case, provides as follows:

             (12) If the period prescribed in subsection (2) . . . has expired, a
      prosecution may nevertheless be commenced for:
             ....
             (b) Any offense based upon misconduct in office by a public
      officer or employee at any time when the defendant is in public office
      or employment, within 2 years from the time he or she leaves public

                                         -3-
      Petitioner moved to dismiss all eight charges under Florida Rule of Criminal

Procedure 3.190(c)(4), on the ground that the statute of limitations had expired and

the provision that extended the limitation period did not apply. The bringing of

charges within the limitation period is a factual matter which the State must prove

just as it must prove all other elements of the offense. See Sturdivan v. State, 

, 301-02 (Fla. 1982); State v. King, 

(Fla. 1973); Gray v.

State, 

, 756 (Fla. 2d DCA 2001). A motion to dismiss under rule

3.190(c)(4) asserts that “[t]here are no material disputed facts and the undisputed

facts do not establish a prima facie case of guilt against the defendant.” The

purpose of a motion to dismiss under rule 3.190(c)(4) is to determine whether the

facts which the State has alleged and upon which it will offer evidence show a

prima facie case of guilt on the part of the defendant. See Styron v. State, 

965, 966 (Fla. 1st DCA 1995).

      The State filed traverses to the motions to dismiss. The State’s traverses

disputed Petitioner’s claim that the undisputed facts showed that the statute of

limitations had expired. The State’s traverses disputed certain factual statements in

Petitioner’s motion and alleged additional facts supporting its position that the




      office or employment, or during any time permitted by any other part
      of this section, whichever time is greater.



                                         -4-
extension statute was applicable. These filings framed for the trial court’s

determination the issue of whether the State had established a prima facie case of

guilt against the defendant. See, e.g., Dixon v. State, 

, 723 (Fla. 2d

DCA 2013); State v. Yarn, 

, 85 (Fla. 2d DCA 2011). Finding that

there were disputed facts or that the undisputed facts established a prima facie case

of defendant’s guilt, the trial court denied the motions to dismiss. Petitioner

pleaded nolo contendere, reserving the right to appeal the denial of his motions to

dismiss. The court adjudicated Petitioner guilty of the charged offenses. By

pleading nolo contendere, Petitioner admitted the facts alleged in the information.

See, e.g., Vernold v. State, 

, 1167 (Fla. 1979). A defendant

pleading nolo contendere can reserve only legal issues for appeal. See Falco v.

State, 

, 206 (Fla. 1981). Whether a statute applies to a given set of

facts is a legal issue. See Koile v. State, 

, 1229 (Fla. 2006).

      Thus the legal issue framed for appellate review was whether the statute of

limitations’ extension provision for “misconduct in office by a public officer or

employee” was applicable in this case. The district court of appeal affirmed the

convictions. Crews v. 

. Then it certified the question set

out above.




                                         -5-
                                     ANALYSIS

                                           I.

      First we address the certified question. The certified question asks whether a

statute applies to a given set of facts. This is a question of law calling for de novo

review. See Kephart v. Hadi, 

, 1089 (Fla. 2006). The district

court held that the offenses were “misconduct in office” and that the statute applied

to Petitioner because he was a public school teacher. Petitioner argues that the

statutory language is ambiguous and in need of judicial construction to ascertain its

meaning. Petitioner argues that we should look to the rules of statutory

construction and that applying the appropriate rules of construction leads to the

conclusion that the statute does not apply to public school teachers. The State

responds that the language of the statute is clear and therefore no resort to rules of

construction is necessary. If the language requires interpretation to determine its

intended meaning, the State argues, applying the rules of construction leads to the

conclusion that the statute is intended to apply to public school teachers.

      The object of statutory interpretation is to determine legislative intent. See,

e.g., Raymond James Fin. Servs. v. Phillips, 

(Fla. 2013); Larimore

v. State, 

, 106 (Fla. 2008); Kasischke v. State, 

(Fla.

2008). We look first to the words of the statute to determine legislative intent.

See, e.g., 

; Zuckerman v. Alter, 

, 663


                                         -6-
(Fla. 1993); S.R.G. Corp. v. Dep’t of Revenue, 

, 689 (Fla. 1978).

“[W]ords of common usage, when used in a statute, should be construed in their

plain and ordinary sense.” Pedersen v. Green, 

, 4 (Fla. 1958).

      The relevant language of section 775.15(12)(b), Florida Statutes (2015),

provides:

             (12) If the period prescribed in subsection (2) . . . has expired, a
      prosecution may nevertheless be commenced for:
             ....
             (b) Any offense based upon misconduct in office by a public
      officer or employee at any time when the defendant is in public office
      or employment, within 2 years from the time he or she leaves public
      office or employment, or during any time permitted by any other part
      of this section, whichever time is greater.

(Emphasis added.) The certified question asks us to determine whether this statute

applies to public school teachers. In LaMorte v. State, 

(Fla. 2d

DCA 2008), a public school teacher was charged with several offenses and the

charging document included the allegation that the offenses constituted misconduct

in office by a public employee. The defendant moved to dismiss for expiration of

the statute of limitations. When his motion to dismiss was denied, defendant pled

nolo contendere and was convicted. On appeal he argued that the limitation

extension statute applied only to persons holding public office and was therefore

inapplicable. The district court found that the words “public officer or employee”

were clear in meaning. 

The court held that the extension statute applied




                                         -7-
to public employees as well to public officers and that it applied to public school

teachers. 

552-53.

      To support his contention that the meaning of the provision is unclear,

Petitioner suggests that the words “misconduct in office,” when juxtaposed with

the words “public office or employment” are discordant because of the inference

that to commit “misconduct in office,” one needs to hold or be in a “public office.”

Petitioner argues that this creates an ambiguity and that under the rule of lenity,5 an

ambiguity in a criminal statute must be resolved in favor of the defendant.

      Petitioner points out that in the public education statutes, teachers are not

defined as “employees” but as “instructional personnel.”6 Relying on the canon of

statutory construction in pari materia,7 i.e., that statutes on the same subject matter

should be read together, he argues that the limitation extension statute should be

construed in light of the definitions found in the education statute, under which,

according to the argument, a public school teacher would not be considered a



      5. See § 775.021(1), Fla. Stat. (2015) (“The provisions of this code and
offenses defined by other statutes shall be strictly construed; when the language is
susceptible of differing constructions, it shall be construed most favorably to the
accused.”).

      6. § 1012.01(2), Fla. Stat. (2006).

       7. In pari materia means on or relating to the same subject matter. Black’s
Law Dictionary 911 (10th ed. 2014). This canon of construction provides that
statutes on the same subject matter may be construed in light of each other. See 

employee. For further support of this argument, Petitioner relies on the

canon of construction expressio unius est exclusio alterius,8 the rule that in a

statute, the inclusion of one thing indicates the exclusion of others. The argument

is that the Legislature’s choice to include classroom teachers within the defined

category of “instructional personnel” in the public education statute indicates an

intent to exclude public school teachers from the reference to “public officer or

employee” in section 775.15(12)(b).

      The rule of lenity, as expressed in section 775.021(1), applies when a statute

is “susceptible of differing constructions.” The requirement to construe the

language most favorably to the accused applies when the posited differing

constructions are reasonable. See, e.g., Polite v. State, 

, 1111 (Fla.

2007); State v. Williams, 

, 1070 (Fla. 4th DCA 2001); see also 2A

Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 45.2

(7th ed. 2014) (“[A]mbiguity exists when a statute is capable of being understood

by reasonably well-informed persons in two or more different senses.”); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 425

(2012) (“[A]mbiguity [is] [a]n uncertainty of meaning based not on the scope of a




      8. “A canon of construction holding that to express or include one thing
implies the exclusion of the other, or of the alternative.” Black’s Law Dictionary
701 (10th ed. 2014).


                                         -9-
word or phrase but on a semantic dichotomy that gives rise to any of two or more

quite different but almost equally plausible interpretations.”). The statutory

definition of teachers as “instructional personnel” applies in the context of public

school personnel management and is not in pari materia with section

775.15(12)(b). We understand the term “public employee” in its plain and

ordinary sense to include public school teachers. This plain-language

interpretation is consistent with the understanding reflected in other sources of law.

See § 447.203(2)-(3), Fla. Stat. (2006) (providing with exceptions that a person

employed by a public employer is a public employee and that a district school

board is a public employer); see also Dade Cnty. Classroom Teachers’ Ass’n v.

Ryan, 

, 904 (Fla. 1969) (holding that public school teachers had

collective bargaining rights as public employees under article I, section 6, Florida

Constitution). We therefore reject the suggestion that public school teachers are

not meant to be included within the statutory reference to “a public . . . employee.”

      As stated above, Petitioner argues there is an incongruity in the statute based

on the use of the phrase “misconduct in office” followed by the terms “public

officer or employee.” He submits that a useful analysis is found in the dissenting

opinion of Judge Altenbernd in LaMorte. Judge Altenbernd found the phrase

“misconduct in office” ambiguous, requiring a construction in favor of the

defendant under the rule of lenity, and concluded that the statute should apply only


                                        - 10 -
to persons holding “office” as defined by the constitution or by statute. 

(Altenbernd, J., dissenting). Because of this purported

ambiguity, Petitioner submits that the statute should be given a limiting

construction based on the State’s experience with the predecessor version of the

statute.

       Prior to its amendment in 1974, section 932.465(3), Florida Statutes (1973),

provided as follows:

              (3) Offenses by state, county, or municipal officials committed
       during their terms of office and connected with the duties of their
       office shall be commenced within two years after the officer retires
       from the office.

Chapter 74-383, section 10, Laws of Florida, revised this provision and adopted it

in amended form as section 775.15(3)(b), Florida Statutes, reading as follows:

              (3) If the period described in subsection (2) has expired, a
       prosecution may nevertheless be commenced for:
              ....
              (b) Any offense based on misconduct in office by a public
       officer or employee at any time when the defendant is in public office
       or employment or within two years from the time he leaves public
       office or employment or during any time permitted by any other part
       of this section, whichever time is greater.

(Emphasis added.) Thus the reference to “state, county, or municipal officials”

was changed to refer to “a public officer or employee,” and the phrase “connected

with the duties of their office” was changed to read “based on misconduct in

office.”


                                       - 11 -
      Before the 1974 amendment, this Court discussed a possible rationale for the

predecessor statute, which was described as the supposition that “officers can and

frequently do so completely conceal their embezzlements that their crimes are not

detected until their official records pass into the hands of their successors.” State

v. Bruno, 

, 12 (Fla. 1958) (quoting State v. Douglass, 

,

408 (Mo. 1912)). In light of this rationale, Petitioner argues that the inclusion of

the word “employee” in the statute was not intended merely to expand the statute

to cover all public employees but had a more limited purpose. Petitioner argues

that by adding “employee” in the 1974 revision, the Legislature intended to expand

the class of persons covered by the extension provision to include, in addition to

public officials, public employees who exercised the power of a public office in

place of a public officer by delegation of authority. He argues that since public

school teachers do not hold “office” or exercise public authority in place of a

public officer, the statute was not intended to apply to them. To support this

argument, Petitioner cites cases showing that before the 1974 amendment, there

were disputes over whether the extension statute applied to high-ranking local

government employees who claimed not to be public officials. See State v.

Glidewell, 

(Fla. 2d DCA 1975) (holding city manager was a

municipal official despite not having fixed term of office); State v. Clyde, 

136 (Fla. 1974) (holding that circuit court sitting in appellate capacity had


                                        - 12 -
inadequate basis to determine that county building maintenance superintendent was

not a county official). Thus the purpose of the revision, in Petitioner’s view, was

to include employees such as city managers and county building superintendents

within the reach of the statute. In response, the State argues that the Legislature’s

adding the word “employee” shows a clear intent to expand the scope of the statute

to include all public employees.

      When a statute is amended in some material way, courts presume that the

legislature intended the amendment to have substantive effect. See, e.g., Rich v.

Kaiser Gypsum Co., 

, 906 (Fla. 4th DCA 2012); Gunite Works, Inc.

v. Lovett, 

, 910 (Fla. 1st DCA 1980). Before the amendment, the

extension statute by its terms applied to “[o]ffenses by state, county, or municipal

officials . . . connected with the duties of their office.” § 932.465(3), Fla. Stat.

(1973). The 1974 amendment made the extension provision applicable to “[a]ny

offense based on misconduct in office by a public officer or employee.” We agree

that the changes made to the statute in 1974 were intended to expand the reach of

the statute, but not in the limited way suggested by Petitioner. Petitioner’s

argument that the words “public officer or employee” were intended to cover

public officials and employees who act in the place of a public official under

delegated authority is based on sheer speculation. If the Legislature had intended

such a meaning, it could easily have made such intention clear. The amendment


                                         - 13 -
used the words “public officer or employee” in place of the former term “state,

county, or municipal officials.” Every word in a statute should be given effect, and

constructions should be avoided that would render any words superfluous. See,

e.g., 

; State v. Bodden, 

, 686 (Fla. 2004).

We agree with the First District below and the Second District in LaMorte that on

their face the statutory words show a legislative intent to cover public employees

and that public school teachers are included. That the Legislature intended for the

statute to apply to public employees, including public school teachers, is the only

reasonable interpretation.

      We do not agree that the words “public office” should be read to limit the

meaning of the phrase “misconduct in office.” It is plain that the Legislature, in

referring to “a public officer or employee,” meant to refer to two different classes

of persons, “public officers” and “public employees.” No words should be treated

as redundant or useless. However, it does not follow that “misconduct in office”

can only be committed by a public officer. The word “office,” as used in the

phrase “misconduct in office,” has a broader meaning than the sense it expresses

when used in the expression “public office.” When construing words “in their

plain and ordinary sense,” 

, use of a dictionary is

permissible. See, e.g., Green v. State, 

, 473 (Fla. 1992). “Office” is

defined as follows: “A position or place to which certain duties are attached, esp.


                                        - 14 -
one of a more or less public character; a position of trust, authority, or service

under constituted authority; a place in the administration of government, the public

service, the direction of a corporation, company, society, etc.” 10 Oxford English

Dictionary 729 (2d ed. 1989).9 Thus an “office” can be any position of trust or

responsibility and is not limited to the sense of a position invested with

government decision-making power. We have no difficulty concluding that the

phrase “based on misconduct in office” applies to public employees as well as to

public officers. A public school teacher occupies a position of trust and

responsibility under the authority of state and local government and in that sense

the position is an “office.” See also § 421.06, Fla. Stat. (2015) (providing that the

failure of a local housing authority employee to disclose an ownership interest in

property included in a public housing project is “misconduct in office”).10



       9. See also Webster’s Third New International Dictionary 1567 (1981 ed.)
(defining “office” as “a special duty, charge, or position conferred by an exercise
of governmental authority and for a public purpose: a position of authority to
exercise a public function and to receive whatever emoluments may belong to it”).

       10. Other statutory definitions of and references to the terms “public
official,” “public officer,” “public employee,” and “public servant” are unhelpful
because either by their express terms or based on the context they are of limited
application. See, e.g., § 1.01(6), Fla. Stat. (2015) (references to “office or officer”
includes persons authorized to perform duties of the office); § 22.03(3) (“office”
includes state and local offices with duties defined by law); § 97.021(31) (“public
office” defined for purposes of the election code); § 110.107(5) (defining
“position” as used in chapter on public officers and employees); § 111.012(1)(b)
(defining “elected public officer” for purposes of section); § 112.313(1) (defining
“public officer” for purposes of section); § 112.3135(1)(c) (defining “public

                                         - 15 -
      As was mentioned above, Petitioner finds support for his ambiguity

argument in the dissenting views of Judge Altenbernd in LaMorte, who found the

phrase “misconduct in office” ambiguous, requiring a construction in favor of the

defendant under the rule of lenity, and concluded that the statute should only apply

to persons holding “public office” as defined by the constitution or by statute.

(Altenbernd, J., dissenting). Applying the statute

more broadly than this would mean that any public employee committing an

offense connected to his or her employment would be subject to having the

limitation period extended by many years—perhaps for an entire career in public

employment—which, in Judge Altenbernd’s view, would be an incongruous result.

The very incongruity of such a result demonstrated for him the ambiguity of the

statute and thereby created uncertainty as to legislative intent.

      Petitioner also directs our attention to (and urges upon us as a persuasive

analysis) the dissenting opinion filed in the lower court by Judge Padovano, who

reasoned as follows:

      We do not know whether the legislature meant to use the phrase in a
      broad sense to refer to any government employee, or in a narrow

official” for purposes of section); § 112.3142(1) (defining “constitutional officers”
for purposes of section); § 112.49 (person exercising powers of county officer
under city-county charter is a county officer subject to governor’s suspension
power); § 838.014(6) (defining “public servant” to include state, county,
municipal, special district, legislative, or judicial officer or employee for purposes
of chapter).


                                         - 16 -
      sense to include only those employees who hold an “office” as
      defined in the state constitution or the state laws. The narrow
      construction makes more sense to me as I do not think there is any
      valid reason to treat public employees differently from private
      employees.

            At the very least, the statute is ambiguous, and I would resolve
      the ambiguity in favor of the defendant pursuant to the rule of lenity.

(Padovano, J., concurring in part and dissenting in part).

These dissenting opinions are in essence disagreements with the policy choice

made by the Legislature.

      The purpose of a statute of limitations is to avoid delays in prosecution that

might hamper the defense because evidence has been lost and witnesses have

become unavailable. See, e.g., Young v. State, 

, 1251 (Fla. 1st

DCA 2001); State v. Hickman, 

, 261 (Fla. 2d DCA 1966). Under

the common law, there were no time limits on criminal prosecutions. See State v.

McCloud, 

, 244 (Fla. 1953). Statutes of limitation are entirely

discretionary acts of legislative grace. See 

. In State v.

Bruno, 

(Fla. 1958), a municipal officer was charged with grand

larceny and moved to dismiss the charge for expiration of the statute of limitations.

The case involved the application of section 932.06, Florida Statutes, the

predecessor of section 775.15(12)(b), which extended the limitation period until

two years after the end of the defendant’s term of office. The Court held that the

statute served a valid purpose and discussed authorities indicating that the purpose

                                       - 17 -
of such a statute is to avoid the situation whereby “officers can and frequently do

so completely conceal their embezzlements that their crimes are not detected until

their official records pass into the hands of their successors.” 

(quoting 

). The appellant argued that his offense did

not come within the intent of the statute because there was no attempt to conceal

the crime and the crime “did not consist of any act which could be covered up by

the official’s control of his office.” 

The Court rejected the argument

because the statute itself did not provide any “distinction on this ground.” 

also raised as an issue the fact “that one who held public office for forty

years could be charged almost forty two years later for an offense committed in the

first year of his tenure.” 

disposed of this issue as follows: “It being

clear that the Legislature had the right to enact the statute, we will not concern

ourselves with its wisdom in doing so.” 

held in Bruno, the policy issue

involved in the present case—whether it makes good sense to extend the limitation

period so substantially—is for the Legislature to determine.

      We answer the certified question in the affirmative and hold that section

775.15(12)(b), Florida Statutes, applies to public school teachers.




                                        - 18 -
                                          II.

      Petitioner’s second argument is that the statute of limitations extension

provision is inapplicable in this case because the acts on which the criminal

charges were based did not constitute “misconduct in office.” The issue being one

of applying a statute to a given set of facts, the standard of review is de novo. See,

e.g., B.Y. v. Dep’t of Children & Families, 

, 1255 (Fla. 2004).

      By pleading nolo contendere, the defendant admitted the facts alleged in the

information, reserving only his legal claim that the admitted facts did not bring the

case within the extension provision for offenses based on misconduct in office by a

public officer or employee. The issue before the trial court was whether the

allegations of the information, the statements in the State’s traverses, and the

record documents cited in support of them, viewed in the light most favorable to

the State, were sufficient to establish a prima facie case of the defendant’s guilt,

including the fact that the charges were brought within the applicable statute of

limitations period as measured from the time of the acts forming the basis for the

criminal charges. The trial court found that a prima facie case was established and

denied the motions to dismiss, following which Petitioner submitted his nolo pleas

and the court adjudicated him guilty. As stated above, the district court of appeal

affirmed, holding that section 775.15(12)(b) applied to the offenses in this case on

the authority of LaMorte.


                                         - 19 -
      Petitioner argues that the term “misconduct in office” requires that there be a

connection between the offenses charged and the defendant’s function or duties as

a public employee and that the defendant’s mere status as a public employee is not

enough to bring the charges within the extension statute. We need not analyze

Petitioner’s arguments with respect to statutory interpretation on this point because

the State agrees that there must be a connection and we hold there must be a

connection based on the plain language of the statute.

      Petitioner argues that in order for there to be a sufficient connection between

the acts complained of and his duties as a teacher, the acts are required to have

been committed on school grounds or in connection with school activities.11 We

do not agree. The record shows that Respondent became acquainted with and

befriended the minor victims of the crimes through his role as their teacher. The

victims were seventh-, eighth-, and ninth-grade students. Petitioner was active in

sponsoring student activities and cultivated relationships with the students by such

actions as helping with school projects and counseling them about doing well in




       11. Although the context is different, the conduct of a public school teacher
that takes place off of school grounds, outside of school hours, and unconnected
with school activities can provide the basis for a finding of “misconduct in office”
for purposes of disciplinary action against a public school teacher. See Purvis v.
Marion Cnty. Sch. Bd., 

, 498-99 (Fla. 5th DCA 2000) (upholding
teacher’s firing for “misconduct in office” under administrative rules governing
teacher conduct and discipline).


                                        - 20 -
school. His role as their teacher enabled him to gain the trust of his victims. The

victims looked upon him as a person in a position of authority and for that reason a

trustworthy person. The evidence shows that most of the criminal acts took place

at a storage unit which Petitioner had furnished as a living space and where he kept

a television with a DVD player. Petitioner would invite the students to go out to

eat or to car exhibitions and then invite them to the storage unit where he would

show them pornographic videos and eventually persuaded them to allow him to

perform acts of lewd or lascivious exhibition and molestation.

      Petitioner arranged for one of his victims to accompany him to a private

health club a number of times. Sometimes Petitioner took the student there during

school hours. At least one act of lewd or lascivious exhibition and one act of lewd

or lascivious molestation took place at the health club. One of the instances of

Petitioner showing a student obscene material took place in a hotel room on a

school-sponsored trip. However, we do not agree with Petitioner’s argument that

in order to constitute “misconduct in office” the actions must take place on school

grounds or during school activities.

      By means of his role as their teacher, Petitioner gained the opportunity to

invite the students to accompany him to events and activities off the school

grounds, and ultimately to take them to the storage unit, the health club, or to his

home, where the offenses took place. Having used his position as a teacher to


                                        - 21 -
cultivate friendly relationships with the students, he was able to persuade them to

engage in the prohibited acts. His authority as their teacher was a significant factor

in his being able to persuade them to engage in the various acts that formed the

basis for the criminal charges. The record establishes a connection between

Petitioner’s duties as a teacher and the criminal offenses. Therefore, the offenses

were properly regarded as “misconduct in office,” and the statute of limitations

extension provision was properly applied in this case.

                                   CONCLUSION

      We answer the certified question in the affirmative and approve the decision

of the district court of appeal.

      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and POLSTON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which PERRY, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      Under the guise of a “plain language” analysis, the majority has concluded

that the statutory phrase “misconduct in office” in section 775.15(12)(b), Florida

Statutes (2015), actually means misconduct in “employment.” The majority’s

interpretation extends the statute of limitations for all public employees, for any

crime connected with their employment and committed during their employment,


                                        - 22 -
until two years after the employee leaves public employment—even though the

employee holds no “office” defined by Florida law.

      I respectfully dissent from the majority’s statutory interpretation, which it

presents as a “plain language” approach to avoid application of the rule of lenity to

resolve this statutory ambiguity in favor of the reasonable interpretation benefitting

the criminal defendant. See Kasischke v. State, 

, 814 (Fla. 2008). I

would, instead, answer the certified question in the negative and adopt the well-

reasoned opinion of Judge Altenbernd in LaMorte v. State, 

, 553

(Fla. 2d DCA 2008) (Altenbernd, J., dissenting), which was echoed by Judge

Padovano in his separate opinion below. See Crews v. State, 

, 702

(Fla. 1st DCA 2013) (Padovano, J., concurring in part and dissenting in part).

      As Judge Altenbernd explained in LaMorte, the construction of the statute

embraced by the majority results in “holding that all state employees whose

employment is governed by an employment agreement that allows the employer to

terminate or reprimand them for ‘misconduct in office’ as a matter of civil

employment law are subject to a special statute of limitations for criminal offenses

committed in connection with that 

(Altenbernd, J., dissenting). Just as Judge Altenbernd stated, “I cannot agree that

an undefined reference to ‘misconduct in office’ puts public employees on notice

of the extended statute of limitations applicable to them.” 

                                        - 23 -
      Just to be clear, the issue is not whether the statute of limitations should be

extended for crimes of sexual abuse committed against a minor victim. In fact, an

extended statute of limitations already exists for certain criminal sexual offenses

committed against minors, extending into the victim’s age of majority in some

circumstances or even, in others, indefinitely. See § 775.15(13)(a)-(c), (14)(a)-(b),

Fla. Stat. (2015).12 Rather, the issue is whether the statute of limitations should be

extended for all criminal offenses connected with an individual’s public

employment, solely by virtue of the individual’s status as a public employee.

      Even if the majority’s interpretation of the statute is a reasonable one, it

certainly is not “plain.” And even if the majority’s interpretation is reasonable, it

certainly is not the only reasonable interpretation of the statute.

      Under the majority’s analysis, the Legislature’s 1974 amendment of the

statute to include a public “employee,” as well as a public “official,” connotes an

expansion from a limited group of individuals who were previously subject to the


       12. Crews was charged with, among other offenses, second- and third-
degree felonies of lewd or lascivious molestation, lewd or lascivious exhibition,
and showing obscene material to a minor. As the majority opinion notes, second-
and third-degree felonies are ordinarily subject to a three-year statute of limitations
under section 775.15(2)(b), Florida Statutes. None of these charged offenses
occurred later than June 2006, and the State did not commence prosecution until an
information was first filed in March 2012. It is not readily apparent from the
record why the extended statute of limitations applicable to certain criminal sexual
offenses committed against minors did not permit the State to file these charges,
although it is possible that even that extended limitations period had expired for
these particular offenses by the time the State commenced prosecution.

                                         - 24 -
extended statute of limitations to every public employee. But there is not a word

of explanation in the legislative history about this unprecedented expansion, which

the majority claims was clearly intended.

      If the Legislature’s intent was really as clear as the majority asserts, there

would be no need for the majority to rely on pre-amendment history, as the

majority does. In fact, as this Court has previously noted, pre-amendment history

is a tool of statutory construction—not simply an application of a “plain language”

analysis. See N. Carillon, LLC v. CRC 603, LLC, 

, 277-78 (Fla.

2014) (turning to statutory history “to resolve an ambiguity in the statutory text,”

after determining that the plain meaning rule was not dispositive); see also State v.

Hackley, 

, 93 (Fla. 2012) (“[I]f the meaning of the statute is clear and

unambiguous, we look no further.”).

      At the same time, while it is actually engaging in statutory construction to

determine legislative intent, the majority pronounces that “misconduct in office” is

synonymous with misconduct in “employment” and states that the text of the

statute plainly says so. See majority op. at 14-15 (emphasis added). This

interpretation ignores the “well-established tenet of statutory construction that

courts ‘are not at liberty to add words to the statute that were not placed there by

the Legislature.’ ” Lawnwood Med. Ctr., Inc. v. Seeger, 

, 512 (Fla.

2008) (quoting State v. J.M., 

, 111 (Fla. 2002)).


                                        - 25 -
      Importantly, “office” and “employment” do not mean the same thing. A

reasonable interpretation of the phrase “misconduct in office by a public officer or

employee” is that the reach of the statutory text is limited to those employees who

hold an official position or public office defined by Florida law. After all, it is

certainly reasonable to conclude that an individual cannot commit misconduct “in

office” if the individual does not possess any “office.” The majority’s contrary

interpretation that “office” in this context means “any position of trust or

responsibility”—and, apparently, that all public employees are encompassed under

this definition—is not “plain” from the statutory text. See majority op. at 14-15.

      School teachers do not hold any “office” as defined in the Florida

Constitution or the Florida Statutes. See § 1.01(6), Fla. Stat. (2015) (“Reference to

any office or officer [in the Florida Statutes] includes any person authorized by law

to perform the duties of such office.”). As Judge Padovano observed, “We do not

know whether the legislature meant to use the phrase [misconduct in office] in a

broad sense to refer to any government employee, or in a narrow sense to include

only those employees who hold an ‘office’ as defined in the state constitution or

the state laws.” 

(Padovano, J., concurring in part and

dissenting in part). At a minimum, the narrower interpretation is a reasonable one,

thus implicating our duty to apply rules of statutory construction and in particular

the rule of lenity, which in Florida is more than “just an interpretive tool” but is in


                                         - 26 -
fact “a statutory directive.” 

(citing section

775.021(1), Florida Statutes).

      The disparity explained by Judges Altenbernd and Padovano is not simply a

policy disagreement, as the majority erroneously contends, but an expression

directly related to the judiciary’s role to determine legislative intent—that is, that

the Legislature would not have drastically extended the statute of limitations to all

public employees simply by using the phrase “misconduct in office”:

             I am troubled by the disparity created by the majority’s holding
      between the treatment of state employees and the treatment of private
      employees. For example, a private school teacher who steals a $500
      piece of equipment is subject to a three-year statute of limitations, see
      § 775.15(2)(b), Fla. Stat. (2007), while a public school teacher, or
      perhaps even a janitor, who commits the same act is subject to a
      statute of limitations that may not expire for thirty years. See
      § 775.15(12)(b). The teacher involved in this case has a limitations
      period in excess of twenty years for offenses that would have been
      barred after three years if he worked for a church or private school. I
      am not arguing that this statute of limitations violates equal
      protection; I simply believe this incongruity demonstrates the
      ambiguity that should require this court to narrowly construe this
      special statute of limitations.

(Altenbernd, J., dissenting).

      In short, I would conclude that the Legislature’s use of the phrase

“misconduct in office” is not clear and unambiguous but is instead subject to two

reasonable interpretations. As required by generally accepted principles of

statutory construction and by the rule of lenity set forth in section 775.021(1), I

would interpret the statute in the light most favorable to the defendant.


                                         - 27 -
Accordingly, I dissent from the majority’s statutory construction analysis and

would answer the certified question in the negative.

PERRY, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

      First District - Case No. 1D12-4703

      (Bay County)

Nancy Ann Daniels, Public Defender, and Glen Phillip Gifford, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Jennifer
Johnson Moore, Assistant Attorney General, Donna Antoinette Gerace, Assistant
Attorney General, and Justin Derek Chapman, Assistant Attorney General,
Tallahassee, Florida,

      for Respondent

Pamela Langston Cooper, General Counsel, and William Alexander Spillias,
Assistant Director of Legal Services, Florida Education Association, Tallahassee,
Florida,

      for Amicus Curiae Florida Education Association




                                       - 28 -