Bunkley v. State (882 So. 2d 890, 2004)

ON REMAND

BELL, J.

This case is before the Court on remand from the United States Supreme Court for reconsideration of our decision in Bunkley v. State, 833 So.2d 739 (Fla.2002), vacated, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution and reaffirm our decision in Bunkley.

FACTS AND PROCEDURAL HISTORY

The facts are set out fully in this Court’s initial opinion on review. Bunkley, 833 So.2d at 740-41. In 1986, Bunkley burglarized a closed, unoccupied restaurant. When he was arrested, he had in his pocket a folding knife with a blade shorter than four inches. The knife had been folded in his pocket at all times during the burglary. Bunkley was charged with armed burglary. To prove the offense under section 810.02(2)(b), Florida Statutes (1985), the State had to prove that Bunkley was armed with a “dangerous weapon.” The applicable statutory definition of a “weapon” in section 790.001(13), Florida Statutes (1985), excluded a “common pocketknife.” Specifically, this statute defined a “weapon” as “any dirk, metallic knuckles, slung-shot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” The term “common pocketknife” is not statutorily defined.

That Bunkley’s knife was a “dangerous weapon” and not an excepted “common pocketknife” was a basic element of the offense the State had to prove to the jury. To establish this element at trial, the arresting officer told the jury that Bunkley had “a good-sized buck knife.” The officer said that the blade, which folded into the handle, was about two-and-one-half to three inches long. The officer testified further that Bunkley’s knife blade locked in the open position. The officer explained how this feature distinguished it from a common pocketknife:

It’s a locked blade, which makes it a dangerous weapon for the simple fact that an average pocketknife, if you stick something with it and you’re not very good at what you do, the blade will close. The pocketknife has that safety feature, that it will close. This blade will not close unless you push down very hard on this spring.

On cross-examination, Bunkley acknowledged that the knife could cut a throat and could be considered a dangerous weapon. In closing argument, the prosecutor described the blade as thick and capable of being locked in an open position, unlike a common pocketknife. Because the knife was admitted into evidence, the jurors could examine it for themselves.

The jury, having heard the evidence, considered the arguments of counsel, and received from the trial judge the proper instruction on the law applicable to the charged offense, concluded Bunkley’s knife was a dangerous weapon, not a common pocketknife, and convicted him of armed burglary, possession of burglary tools, and resisting arrest without violence. The court entered judgment in April 1987. On the armed burglary conviction, the court sentenced Bunkley to life imprisonment in accordance with the sentencing guidelines. The sentence was based in part on Bunkley’s fifteen prior convictions, fourteen of which were related to burglary. The Second District Court of Appeal affirmed Bunkley’s conviction without opinion. Bunkley v. State, 539 So.2d 477 (Fla. 2d DCA 1989) (table).

Bunkley filed two motions for postcon-viction relief, challenging the jury’s finding that he was armed with a dangerous weapon. The Second District Court of Appeal affirmed the denial of one of Bunkley’s motions, Bunkley v. State, 569 So.2d 447 (table) (No. 90-02681), and struck the appeal from the denial of the other motion. Bunkley v. State, 569 So.2d 447 (Fla. 2d DCA 1990) (table) (No. 90-02568). Bunkley also filed two federal habeas petitions in which he argued that he could not be convicted of armed burglary because his knife was a common pocketknife excluded from the section 790.001(13) definition of a weapon. The federal district court denied Bunkley relief. Bunkley v. Singletary, No. 96-405-CIV-T-24C (M.D.Fla. Feb. 26, 1999); Bunkley v. Dugger, No. 91—113—CIV-T-99B (M.D. Fla. June 1, 1993). Bunkley also filed a petition to invoke all writs in this Court, which we denied without opinion in July 1995. Bunkley v. State, 660 So.2d 712 (Fla.1995) (table).

In 1997, eight years after Bunkley’s conviction and sentence became final, we decided L.B. v. State, 700 So.2d 370 (Fla.1997), in which we interpreted the “common pocketknife” exception to the section 790.001(13) definition of a “weapon.” We held in L.B. that the petitioner’s knife, which had a three-and-three-quarter-inch blade, fell within the “common pocketknife” exception. Id. at 373. In reaching that conclusion, we cited a 1951 Florida Attorney. General’s opinion which stated that a pocketknife with a blade of four inches or less is a common pocketknife. Id. (citing Op. Att’y Gen. Fla. 51-358 (1951)). Based on the L.B. decision, Bunkley applied for postconviction relief under Florida Rule of Criminal Procedure 3.850. Bunkley argued that under the L.B. definition of a “common pocketknife,” his knife with its three-inch blade was excluded from the statutory definition of a “weapon,” so that he could not be convicted of armed burglary.

The circuit court dismissed Bunkley’s rule 3.850 motion, and the Second District Court of Appeal affirmed, but certified to us the question of whether L.B. was to be applied retroactively. Bunkley v. State, 768 So.2d 510 (Fla. 2d DCA 2000). In answering the Second District’s certified question, we determined that L.B. constituted a “change” not a “clarification” in the law. We expressly looked at the decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), but rejected its applicability to Bunkley. We determined that, “as opposed to ‘changes’ in the law, an entirely separate body of precedent, i.e. ‘clarifications’ in the law, has no application under Florida law in the context of retroactivity.” Bunkley 833 So.2d at 744. Applying our well-established law on retroactivity, we held that L.B. did not apply retroactively to Bunkley’s case and approved the Second District’s decision. Bunkley v. State, 833 So.2d 739, 746 (Fla.2002). We explained that only a “jurisprudential upheaval,” defined as a “major constitutional change of law,” justified retroactive application. Id. at 744 (citing Witt v. State, 387 So.2d 922, 929-30 (Fla.1980)). We concluded that L.B. was, instead, a mere “evolutionary refinement” in the law, and thus would not be applied retroactively. Bunkley, 833 So.2d at 745.

Justice Pariente, in a dissent'joined by Chief Justice Anstead, argued that Bunk-ley’s conviction violated the due process principles of Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001). Fiore held that due process is violated by a conviction based on conduct that a “criminal statute, as properly interpreted, does not prohibit.” Id. at 228, 121 S.Ct. 712. The Bunkley dissent argued that L.B. did not change or refine the law but merely clarified the existing interpretation of a “common pocketknife” under the statute. Bunkley, 833 So.2d at 747 (Pariente, J., dissenting). According to the dissent, L.B. “correctly stated the law at the time Bunkley’s conviction became final.” Bunkley, 833 So.2d at 747 (Pariente, J., dissenting). Thus, the dissent stated that under 1989 law (as clarified by L.B. in 1997), Bunkley carried a “common pocketknife” excepted from the statutory definition of a “weapon,” so he could not be convicted of armed burglary. Bunkley, 833 So.2d at 747. Bunkley then filed a pro se petition for writ of certiorari to the United States Supreme Court.

The United States Supreme Court granted certiorari from and vacated this Court’s decision. Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003). The Supreme Court remanded the casé with instructions to consider whether, in light of Fiore and L.B., Bunkley was convicted without proof of one of the elements of the crime. The Supreme Court accepted, this Court’s conclusion that L.B. changed the law. Bunkley, 123 S.Ct. at 2023. However, the Supreme Court noted that this Court said L.B. culminated a “century-long evolutionary process” in the law on the “common pocketknife” exception. Id. The Supreme Court could not determine whether L.B. changed the law from 1989 when Bunkley’s conviction became final or whether L.B. merely clarified the law as it had existed in 1989. Id.

Consequently, the United States Supreme Court said that the question under Fiore, left unanswered by our decision in Bunkley, was whether a two-and-one-half-to three-inch pocketknife was a “weapon” under the statute in 1989. Bunkley, 123 S.Ct. at 2024. If Bunkley’s pocketknife was not a “weapon” under the statute when his conviction became final in 1989, then his conviction violated Fiore’s due process principles. On the other hand, if Bunkley’s knife could have been a “weapon” under the statute in 1989, then Bunk-ley’s conviction stands.

FLORIDA LAW IN 1989

In answer to the United States Supreme Court’s question, we clarify that Bunkley’s conviction was proper under Florida law in 1989. Basically, in light of both Fiore and L.B., Bunkley was not convicted without proof of one of the elements of his crime. Bunkley’s knife could have been a “dangerous weapon” under both the statute and the decisional law at that time. In 1989, whether Bunkley’s knife was a weapon was properly a factual determination for his jury. Having heard the evidence and having received proper instructions on the law, Bunkley’s jury unanimously determined that his knife was a dangerous weapon, not a common pocketknife. The evolutionary refinement in our decisional law made eight years later in L.B. has no retroactive application under either Florida’s well-established law on retroactivity or Fiore. The support for this conclusion is found in our prior decision, the prior federal habeas petition decisions, and the discussion below.

Bunkley was convicted of armed burglary under a statute defining the offense as simple burglary while the defendant is armed with a “dangerous weapon.” § 810.02(2)(b), Fla. Stat. (1985). At the time of Bunkley’s trial in 1987, whether or not a particular knife was a “dangerous weapon” under the statute was determined by. juries based on the. facts of each case after receiving proper instructions on the law. In Bunkley’s case, the jury determined that Bunkley’s knife was a “dangerous weapon,” not a common pocketknife. And, because he was armed with a dangerous weapon, he was guilty of armed burglary.

The decisional law of Florida was clear in 1989 that the determination of whether Bunkley’s knife was a dangerous weapon or an exempted common pocketknife was ordinarily a question of fact for a properly instructed jury, not a pure question of law. Of particular importance, this position is confirmed by State v. Ortiz, 504 So.2d 39, 40 (Fla. 2d DCA 1987). Ortiz was charged with possession of a concealed weapon, not armed burglary, but he relied on the same statutory exception on which Bunkley relies. He filed a motion to dismiss because the charge was based on his pocketknife, and the definition of a “weapon” under section 790.001(13) excludes a “common pocketknife.” Ortiz, 504 So.2d at 40. The trial court granted the motion to dismiss. The Second District Court of Appeal reversed. Although there was no factual dispute about the characteristics of the knife, the Second District held that “whether a knife is a ‘common pocketknife’ ordinarily involves a factual determination which may not be made by a trial court” on a motion to dismiss. Id.

While Ortiz was decided in the context of a motion to dismiss, the Second District has repeatedly affirmed that the Ortiz decision rested on the rule that “whether the knife was a' common pocketknife was a question of fact , that must be resolved by a jury.” Baldwin v. State, 857 So.2d 249, 252 (Fla. 2d DCA 2003) (citing Ortiz, 504 So.2d at 40), review dismissed, 865 So.2d 479 (Fla.2003); see also Mitchell v. State, 698 So.2d 555, 561 (Fla. 2d DCA 1997) (citing Ortiz for the rule that “whether a pocketknife is a weapon is a factual question for the jury”), approved, 703 So.2d 1062 (Fla.1997); Bell v. State, 673 So.2d 556 (Fla. 1st DCA 1996) (affirming a defendant’s- convictions for concealed weapons offenses and citing Ortiz for the rule that whether a knife qualified as a “weapon” under section 790.001(13) is a jury question).

Ortiz was decided on March 13, 1987, one month before Bunkley’s trial began on April 13, 1987. Ortiz remained the law beyond 1989 when Bunkley’s conviction became final. Indeed, the Second District’s decision in L.B. confirms the rule that whether a knife fell within the “common pocketknife” exception was a jury question. In L.B., the Second District rested upon this fact when it held that the “common pocketknife” exception to the statutory definition of weapon was void for vagueness. L.B. v. State, 681 So.2d 1179, 1181 (Fla. 2nd DCA 1996), rev’d, 700 So.2d 370 (Fla.1997). In support of its conclusion, the Second District observed that “the statute impermissibly leaves the question of whether a specific pocketknife is or is not a weapon to the ‘whim of a jury.’ ” Id. at 1180. The Second District also cited with approval the trial court’s conclusion that “no per se test could be applied to determine whether the [defendant’s] knife, as a matter of law, fell within the exception.”' Id.

This Court reversed the Second District’s decision. We expressly held that the statute was not void for vagueness. See L.B. v. State, 700 So.2d 370, 373 (Fla. 1997). Indeed, this Court in L.B. recognized the rule that whether a knife is a “common pocketknife” is a jury question, and stated that in most cases the answer will be obvious to fact-finders. L.B., 700 So.2d at 372. Even though juries might reach inconsistent results based on similar facts, L.B. stated that this is an acceptable consequence of our jury system. Id. at 373. Thus, Florida law at the time of Bunkley’s conviction unquestionably approved the referral to a jury of the question of whether a specific pocketknife qualified as a “weapon” under the section 790.001(13) definition, or, specifically to Bunkley, as a “dangerous weapon” under section 810.02(2)(b).

In sum, at the time of Bunkley’s conviction juries were given the instructions previously noted and it was up to them to determine unanimously as a question of fact whether or not a particular pocketknife was a “dangerous weapon” or a “common pocketknife.” Thus, as a matter of statutory and decisional law in 1989, Bunkley’s jury could permissibly conclude that a folding knife with a three-inch blade carried closed in a burglar’s pocket was a “dangerous weapon.” And as the federal district court observed in rejecting Bunk-ley’s claim in his first habeas petition, the evidence presented at trial regarding Bunkley’s buck knife “clearly provided sufficient evidence for the jury to find that the petitioner was armed with a dangerous weapon.” Bunkley v. Dugger, No. 91-113-CIV-T-99B, order at 6 (M.D. Fla. June 1, 1993). Bunkley’s jury found that he was armed with a “dangerous weapon” while he committed the burglary. This was proper under the law at the time of Bunk-ley’s trial in 1987 and at the time his conviction became final in 1989.

Bunkley argues that L.B. stated a bright-line rule that a pocketknife with a blade shorter than four inches is a “common pocketknife” excluded from the section 790.001(13) definition of a “weapon,” unless other characteristics of the knife, how it is carried, or how it is used establish the weapon-like qualities of the knife. As does the dissent, Bunkley further argues that the L.B. rule existed as a matter of Florida law at the time of his conviction. Bunkley cites several cases to support his argument. See, e.g., Gust v. State, 558 So.2d 450, 452-53 (Fla. 1st DCA 1990) (stating that a key-chain knife would fall within the “common pocketknife” exception to the statutory definition of “weapon”); Arroyo v. State, 564 So.2d 1153, 1154 (Fla. 4th DCA 1990) (reversing a defendant’s conviction for attempted armed burglary and holding that a pocketknife is not a “dangerous weapon” with regard to attempted armed burglary unless it was used in a manner likely to cause death or great bodily harm); McCoy v. State, 493 So.2d 1093 (Fla. 4th DCA 1986) (stating that a “small” pocketknife is not a “weapon,” but affirming a defendant’s conviction because the State presented sufficient evidence for the jury to conclude that the way the defendant used the knife constituted assault with a deadly weapon).

However, these cases do not support Bunkley’s or the dissent’s position. These cases do not define the scope of the “common pocketknife” exception at the time of Bunkley’s conviction with respect to the length of knife blade that qualifies as a “common pocketknife.” Further, only McCoy was decided before Bunkley’s conviction became final, and McCoy was a Fourth District case. The precedent of the Second District, cited above, was the uncontradicted law in Florida in 1989 and establishes that the question of whether a particular knife was a “common pocketknife” or a “dangerous weapon” was a fact question for the jury. A trial court within the Second District conducted Bunkley’s trial. In light of the Second District’s precedent, the trial court properly submitted to the jury the question of whether Bunkley’s pocketknife was a weapon.

Bunkley also relies on the Attorney General’s 1951 opinion to support his argument that his knife was a “common pocketknife” at the time of his conviction. The Florida Attorney General in 1951 opined that “a pocket knife ... with blade approximately four inches long is a ‘common pocket knife’ within the meaning of the [statutory] exception.” Op. Att’y Gen. Fla. 51-358 (1951). However, Bunkley’s reliance on the Attorney General’s opinion as a statement of 1989 law is misplaced because opinions of the Attorney General are not statements of law. See Leadership Housing, Inc. v. Department of Revenue, 336 So.2d 1239, 1241 (Fla. 4th DCA 1976); Beverly v. Division of Beverage of the Dep’t of Bus. Regulation, 282 So.2d 657, 660 (Fla. 1st DCA 1973) (holding that opinions of the Attorney General are entitled to great weight in construing state law but are not binding on courts). Further, notwithstanding the Attorney General’s statement that a pocketknife with a four-inch blade fits within the statutory “common pocketknife” exception, the Attorney General expressly qualified his opinion by stating that “the concealed carrying of' the weapons enumerated in this statute must, to a large extent, be governed by the particular and peculiar facts surrounding each casé.” Op. Att’y Gen. Fla. 51-358 (1951).

In sum, neither Bunkley nor the dissent cites any law of Florida at the time of Bunkley’s conviction to suggest that the court should not have allowed the jury to decide whether Bunkley’s particular knife was a dangerous weapon. In Bunkley’s case, consistent with the Attorney General’s recognition of the factual nature of the issue and as prescribed by applicable Florida law, the trial court properly submitted to the jury the question of whether Bunk-ley was armed with a “dangerous weapon” or merely carried a “common pocketknife” while he committed a burglary.

CONCLUSION

In answer to the United States Supreme Court’s question, we clarify that at the time Bunkley’s conviction became final, the question of whether Bunkley’s knife fit within the “common pocketknife” exception in section 790.001(13) was a fact question' properly answered by a jury instructed on the law. Bunkley was lawfully convicted by the unanimous decision of a jury of his peers properly instructed with the unambiguous law applicable at the time of his offense. He was also sentenced according to that law. Therefore, Bunkley’s conviction does not violate the federal due process requirements stated in Fiore. L.B.’s subsequent, conventional change in our decisional law has no retroactive application and thus does not negate Bunkley’s lawful conviction.

It is so ordered.

WELLS, LEWIS, and CANTERO, JJ., concur.

WELLS, J., concurs with an opinion, in which CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., dissents with an opinion.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, C.J., concurs.

QUINCE, J., recused.

. The dissent asserts that the instructions given to Bunkley’s jury were erroneous in light of L.B. v. State, 700 So.2d 370 (Fla.1997). However, the jury instructions correctly stated the law at the time of Bunkley’s trial. The trial court, without objection, instructed Bunkley's jury that a “dangerous weapon” is "any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.” No additional or special instructions were requested by the defendant. When the jury itself requested further instructions concerning the use of the weapon, the trial court instructed the jury: "The fact that the defendant does not actually employ the weapon is not the gravamen of this enhanced offense. There is no requirement that the State must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed.” Bunkley's counsel objected to this additional instruction solely on the ground that the standard jury instructions were adequate. The court overruled the objection based on State v. Rodriguez, 402 So.2d 86, 86 (Fla. 3d DCA 1981) (holding that the burglary statute authorizes an increased penalty where the burglar is armed, and the fact that the defendant does not actually use the weapon is "not the gravamen of this" enhanced offense”). Bunkley offered no case law to contradict Rodriguez. In fact, Bunkley had no legal ground on which to challenge the supplemental jury instruction. The holding of Rodriguez is consistent with the armed burglary statute, which provides a maximum penally of life in prison where a burglar either commits an assault or battery, or where a burglar commits a burglary while armed with a dangerous weapon. See 810.02(2)(a), (b), Fla. Stat. (1985). For a conviction of armed burglary, there is no statutory requirement that an armed burglar use the weapon. Thus, Bunkley's jury was properly instructed. In any case, in, Bunkley’s petition to this Court, Bunkley did not renew his objection to the jury instructions. Therefore, the correctness of the jury instructions is not an issue before this Court.

. At this point, Bunkley's conviction and sentence became final. The Florida Supreme Court has no subject matter jurisdiction over such decisions because such an affirmance without opinion by a district court in Florida constitutes a "decision of the highest state court empowered to hear the cause.” Florida Starv. B.J.F., 530 So.2d 286, 287 (Fla.1988).

. The juvenile in L.B. was charged with possession of a weapon on school property in violation of section 790.115(2), Florida Statutes (1995). Unlike Bunkley's crime, there was no underlying offense to which the possession of a weapon was an enhancement. However, the same definition of "weapon” which excluded a "common pocketknife” was at issue.

. The dissent erroneously characterizes this Court’s decision in L.B. as having clarified the definition of a “common pocketknife” in order to save the term from constitutional vagueness, and thus argues that our decision in L.B., although it came seven years after Bunkley’s conviction became final, must apply to Bunkley’s case. If L.B. had declared the weapons statute unconstitutional but for a saving construction, we would have evaluated the statute’s application to Bunkley on that basis. However, that is not what L.B. held. To the contrary, a review of L.B. reveals that this Court upheld the statutory term “common pocketknife” as sufficiently clear to "provide persons of ordinary intelligence with fair notice as to what constitutes forbidden conduct,” and therefore not unconstitutionally vague. Id. at 371-72.

In determining that the “common pocketknife” exception is facially constitutional, we stated in L.B. that “in the vast majority of cases, it will be evident to citizens and fact-finders whether one’s pocketknife is a 'common' pocketknife under any intended definition of that term.” Id. at 372. We assumed for the sake of argument that “in some peripheral cases it may not be clear whether a particular pocketknife is a 'common' pocketknife.” Id. However, we said "that reason alone is insufficient to strike a statute as unconstitutionally vague.” Id. We emphasized that ,;even if judges and juries were prone to reach inconsistent conclusions as to which knives are 'common pocket knives’ under section 790.001(13), the statute still would not be rendered unconstitutional.” Id. We cited for support the United States Supreme Court’s statement in Roth v. United States, 354 U.S. 476, 492 n. 30, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957):

It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.

700 So.2d at 373 (quoting Roth, 354 U.S. at 492 n. 30, 77 S.Ct. 1304). Finally, we concluded in L.B. that "in the vast majority of cases it will be evident whether one's particular knife is a 'common pocketknife' therefore, we held that "section 790.001(13) is not void for vagueness.” Id. Thus, without resort to a saving definition, this Court in L.B. held that the statutory “common pocketknife” exception at issue in Bunkley's case was not unconstitutionally vague.

. The dissent asserts that Fiore mandates the relief Bunkley seeks because "the constitutional principles are identical.” We disagree. This case is fundamentally different from Fiore. In Fiore, the State failed to present any evidence on a basic element of the crime. Fiore was convicted under a Pennsylvania statute that prohibited operating a "hazardous waste facility without a permit.” Fiore, 531 U.S. at 226, 121 S.Ct. 712. The United States Supreme Court in Fiore noted the Pennsylvania Supreme Court's ultimate determination that the Commonwealth presented no evidence to prove a basic element of the crime for which Fiore was convicted, i.e., the failure to possess a permit; instead, the Commonwealth conceded that Fiore did possess a permit. Fiore, 531 U.S. at 229, 121 S.Ct. 712. Unlike Fiore, sufficient evidence was adduced at Bunkley’s trial on every element of his crime, including the dangerousness of his weapon, for his jury to find proof of guilt beyond a reasonable doubt. Specifically, the State presented evidence and proved to a jury that he not only possessed a knife, but that this knife was a dangerous weapon and not a common pocketknife. Therefore, this case is distinct from Fiore because there was no failure of proof under the applicable procedural or substantive law of 1989 as to any element of Bunkley’s offense. Consequently, Bunk-ley’s Fourteenth Amendment due process rights were not violated.

WELLS, J.,

concurring.

I fully concur with the majority. I write to explain why the law in respect to Bunk-ley’s case is the law which the district court held it to be when Bunkley’s judgment of conviction and sentence became final in 1989. On this remand from the United States Supreme Court, the beginning point of our examination must be the precise statement of the Supreme Court as to our error:

The Florida Supreme Court committed an error of law here by not addressing whether the [L.B. v. State, 700 So.2d 370 (Fla.1997),] decision means that at the time Bunkley was convicted, he was convicted of a crime — armed burglary — for which he may not be guilty.

Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 2022 n. *, 155 L.Ed.2d 1046 (2003).

The Supreme Court stated in respect to its decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001):

Fiore requires that the Florida Supreme Court answer whether in light of L.B., Bunkley’s pocketknife of 2$ to 3 inches fits within § 790.001(13)’s “common pocketknife” exception at the time his conviction became final.

Bunkley, 123 S.Ct. at 2023. To answer this direct question of what was the law concerning the common pocketknife exception at the time Bunkley’s conviction became “final,” this Court must directly confront the issue of whether final decisions of Florida’s district courts of appeal are “final” as to the law of Florida or whether there is no extant law of Florida as to the construction of a statute until this Court construes the statute.

The express issues are:

(1) Whether under Florida law a decision by a Florida district court of appeal construing or applying a criminal statute establishes what the law is until a case involving the construction or application of that criminal statute reaches and is decided by this Court; and

(2) Whether, when a case involving the construction or application of a criminal statute reaches and is decided by this Court, the decision of this Court construing or applying the statute relates back to the legislative adoption of the statute and renders void all contrary decisions by Florida’s district courts.

I agree with Justice Pariente that this Court’s decisions in Bunkley v. State, 833 So.2d 739 (Fla. Nov.21, 2002), and State v. Klayman, 835 So.2d 248 (Fla.2002), issued only a week apart, conflict in respect to these views. I do not agree with Justice Pariente as to how these issues or the conflict between Bunkley and Klayman based upon a proper application of Fiore to Florida law should be resolved. Rather, I conclude that the constitutional structure of Florida’s court system and the directly controlling precedent of this Court require the resolution of these two issues to be as follows.

(1) A decision by a Florida district court of appeal establishes the law with respect to the issue addressed in that decision until this Court decides a case contrary to that law.

(2) A decision by this Court that involves the construction or application of a criminal statute and that estabhshes law contrary to the law established by a Florida district court of appeal changes the law and does not relate back to the adoption of the statute by the Legislature.

FIORE v. WHITE

To answer the Supreme Court’s question and to resolve the two pertinent issues set forth above requires an understanding of Fiore.

Fiore was convicted in a Pennsylvania state court of operating a waste management facility without a permit, and his conviction was affirmed through direct appeal in the state court. Fiore’s general manager, Scarpone, was convicted of the same offense in a later proceeding in another state court, but his conviction was subsequently reversed by an intermediate appellate court. The Pennsylvania Supreme Court affirmed the reversal, concluding that the state did not make out a crime because Scarpone did have a permit. The permit in question was the same for Fiore as for Scarpone.

Based upon the successful ruling for Scarpone, Fiore sought both direct and collateral relief in the state courts. Fiore was denied relief and thereafter sought federal habeas corpus relief. Fiore argued that Pennsylvania had imprisoned him for conduct which was not criminal under the statutory section charged. The United States District Court granted Fiore’s petition. The United States Court of Appeals for the Third Circuit reversed, primarily because it believed that “state courts are under no obligation to apply their decision retroactively.” Fiore v. White, 149 F.3d 221, 222 (3d Cir.1998).

In its opinion, the Third Circuit reasoned:

The district court held, and Fiore maintains on appeal, that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require retroactive application of [Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993) ]. This conclusion, however, is at odds with the Supreme Court’s longstanding position that “the federal constitution has no voice upon the subject” of retroactivity. Greater[Great] Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364[, 53 S.Ct. 145, 77 L.Ed. 360] (1932). See Solem v. Stumes, 465 U.S. 638, 642[, 104 S.Ct. 1338, 79 L.Ed.2d 579] (1984); United States v. Johnson, 457 U.S. 537, 542[, 102 S.Ct. 2579, 73 L.Ed.2d 202] (1982). While the Court has concluded that some federal criminal decisions should apply retroactively, see Davis v. United States, 417 U.S. 333, 346-47[, 94 S.Ct. 2298, 41 L.Ed.2d 109] (1974); United States v. United States Coin & Currency, 401 U.S. 715, 724[, 91 S.Ct. 1041, 28 L.Ed.2d 434] (1971), it has made clear that state courts are under no constitutional obligation to apply their own criminal decisions retroactively. Wainwright v. Stone, 414 U.S. 21, 23-24[, 94 S.Ct. 190, 38 L.Ed.2d 179] (1973). Thus, just as the Supreme Court has fashioned retro-activity rules for the federal courts based on principles of judicial integrity, fairness, and finality, see Teague v. Lane, 489 U.S. 288, 304-310[, 109 S.Ct. 1060, 103 L.Ed.2d 334] (1989), the state courts are free to adopt their own retro-activity rules after independent consideration of these and other relevant principles. As the Supreme Court explained in Sunburst Oil:

A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.... The alternative is the same whether the subject of the new decision is common law or statute. The choice for any state may be determined by juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts.... [W]e are not at liberty, for anything contained in the constitution of the United States, to thrust upon those courts a different conception of the binding force of precedent or of the meaning of judicial process.

287 U.S. at 364-66[, 53 S.Ct. 145] (emphasis added) (citations omitted).

Consistent with the Supreme Court’s admonition that federal courts not require retroactive application of state judicial decisions, this court has refused to require application of new state decisions in habeas proceedings.

Fiore, 149 F.3d at 224-25 (parallel citations omitted).

The United States Supreme Court granted Fiore’s petition for certiorari. In setting out the issues in the petition, the Court stated:

Fiore essentially claims that Pennsylvania produced no evidence whatsoever of one element of the crime, namely, that he lacked “a permit.” The validity of his federal claim may depend upon whether the interpretation of the Pennsylvania Supreme Court in Scarpone was always the statute’s meaning, even at the time of Fiore’s trial. Scarpone marked the first time the Pennsylvania Supreme Court had interpreted the statute; previously, Pennsylvania’s lower courts had been divided in their interpretation. Fiore’s and Scarpone’s trial court concluded that § 6018.401(a)’s “permit” requirement prohibited the operation of a hazardous waste facility in a manner that deviates from the permit’s terms, and the Superior Court, in adjudicating Fiore’s direct appeal, accepted the trial court’s interpretation in a summary unpublished memorandum. Then, the Commonwealth Court, in Scarpone’s direct appeal, specifically rejected the interpretation adopted by the Superior Court in Fiore’s case. And the Pennsylvania Supreme Court in Scarpone set forth its authoritative interpretation of the statute, affirming the Commonwealth Court only after Fiore’s conviction became final. For that reason, we must know whether the Pennsylvania Supreme Court’s construction of the statute in Scarpone stated the correct understanding of the statute at the time Fiore’s conviction became final, or whether it changed the interpretation then applicable. Compare, e.g., Buradus v. General Cement Prods. Co., [356 Pa. 349,] 52 A.2d 205, 208 (1947) (stating that “[i]n general, the construction placed upon a statute by the courts becomes a part of the act, from the very beginning ”), with Commonwealth v. Fiore, 665 A.2d at 1193; Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), at 6 (refusing to apply the Scarpone interpretation because “at the time of [Fiore’s] conviction and direct appeals, the interpretation of the law was otherwise”).

Fiore v. White, 528 U.S. 23, 28-29, 120 S.Ct. 469, 145 L.Ed.2d 353 (1999) (parallel citations omitted).

The Court then certified the following question to the Pennsylvania Supreme Court:

Does the interpretation of Pa. Stat. Ann., Tit. 35, s. 6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, [535 Pa. 273,] 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the, date Fiore’s conviction became final? ,

Id. at 29, 120 S.Ct. 469 (parallel citations omitted).

Before the Pennsylvania Supreme Court on the certified question, Fiore took the position that the Pennsylvania Supreme Court did not issue a new rule of law in Scarpone. Fiore claimed that the Pennsylvania Supreme Court had merely provided its first interpretation of an unambiguous statute and that its interpretation was an expression of the law from the date of the enactment of the statute.

The state argued in opposition that the Pennsylvania Supreme Court’s decision in Scarpone created a new rule of law. The state argued that any court can create law with its decision. Until a court of -greater jurisdiction reverses the decision of a lower court or until a court of equal jurisdiction overrules the decision, the law eiha-nating from the initial decision remains law. The state averred that when Fiore’s conviction became final, the 1989 Fiore decision by the Superior Court (an intermediate appellate court) was the controlling law concerning the “permit” requirements.

The Pennsylvania Supreme Court then ruled, based upon Pennsylvania law, that its Scarpone decision did not articulate a new rule of law. The court held that under Pennsylvania law:

There can be no change to statutory law when there has been no amendment by the legislature and no prior decision by this Court. Only the legislature has the authority to promulgate legislation. Our role is to interpret statutes as enacted by the Assembly. We affect legislation when we affirm, alter, or overrule our prior decisions concerning a statute or when we declare it null. and void, as unconstitutional. Therefore, when we have not yet answered a specific question about the meaning of a statute, our initial interpretation does not announce a new rule of law. Our first pronouncement on the substance of a statutory provision is purely a clarification of an existing law.

Prior to our opinion in Scarpone, we had not examined Section 6018.401(a) of the SWMA. The only cases involving that statutory provision were the unpublished memorandum opinion from the Superior Court in its review of Fiore’s direct appeal and the Commonwealth Court’s published decision in Scarpone. As justification for accepting allowance of appeal, we recognized in Scarpone that “[t]he two courts are clearly in conflict and this leaves the Attorney General’s office ill-advised on how it should proceed in such situations.” Scarpone, 634 A.2d at 1112. Consequently, we were not- in a position to overrule a decision by this Court. Certainly, there was no narrowly defined body of law to follow concerning Scarpone’s conviction for causing and assisting in the operation of a hazardous waste facility without a permit. Nevertheless, we cannot classify our ruling in Scarpone as one of. first impression or without precedent. A case of first impression is one that presents an “entirely novel question of law,” which “cannot be governed by any existing precedent.” BLACK’S LAW DICTIONARY 635 (6th ed.1990). Our resolution of the conflict presented in Scarpone was governed by familiar rules of statutory interpretation, grounded in existing case law.

Fiore v. White, 562 Pa. 634, 757 A.2d 842, 848 (2000) (footnote omitted).

Upon return to the United States Supreme Court, the Court held:

The Pennsylvania Supreme Court’s reply specifies that the interpretation of § 6018.401(a) set out in Scarpone “merely clarified” the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore’s conviction. Because Scarpone was not new law, this case presents no new issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.

Fiore v. White, 581 U.S. 225, 228, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001).

The essential principle from Fiore is that a determination of what the law is at the time of a defendant’s conviction is decided on the basis of state law. This principle holds true with respect to Bunkley’s conviction. Therefore, the fundamental analysis in answering the Fiore question with respect to Bunkley has to be whether Florida law is in accord with Pennsylvania law as held by the Pennsylvania Supreme Court that its initial interpretation of a statute does not announce a new rule’ of law but “is purely clarification of an existing law.” Based upon the express constitutional structure of Florida’s court system and our precedent interpreting these provisions, the law of Florida is not in accord with Pennsylvania law in this regard.

FLORIDA LAW

To consider this issue under Florida law, it is necessary to initially review the constitutional structure of the Florida court system and the jurisdiction proscribed by the Florida Constitution for the Florida Supreme Court and the Florida district courts of appeal.

Florida’s district courts of appeal were established in 1957, following an amendment to Florida’s Constitution in 1956. Prior to 1957, jurisdiction for all appeals from courts of general jurisdiction was vested in the Florida Supreme Court. After Florida’s new district courts of appeal became operational on July 1, 1957, the Florida Supreme Court emphasized the role of these tribunals as “final” courts. In Ansin v. Thurston, 101 So.2d 808, 810 (Fla.1958), this Court stated:

It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.

The intent of the Florida Constitution is to limit the Supreme Court’s review of district court decisions to written opinions affecting a class of constitutional or state officers, questions certified by a district court as being of great public importance, or decisions by a district court which are in direct conflict with a decision of another district court or the Florida Supreme Court on the same question of law. See Florida Star v. B.J.F., 530 So.2d 286 (Fla.1988).

Soon after the implementation of the district courts in 1957, this Court in its opinions began to relax the well-defined barriers which constitutionally circumscribed its jurisdiction to review decisions of the district courts. These opinions eroded the finality of district court jurisdiction, causing Justice Thornal, in a dissent in Foley v. Weaver Drugs, Inc., 177 So.2d 221, 234 (Fla.1965), to lament: “If I were a practicing lawyer in Florida, I would never again accept with finality a decision of a District Court.” In view of this erosion of finality of the decisions of the district courts, this Court was increasingly overwhelmed with filings.

With the steady rise of petitions for certiorari in this Court, it became obvious to the bench and bar of Florida that some relief was necessary. Thus, in 1978, a commission was appointed which recommended a series of guidelines designed to ensure that this Court acted with more restraint in granting review of district court decisions. Most of those guidelines became an integral part of a revision to article V of Florida’s Constitution, which was adopted by voters on March 11, 1980, and became effective on April 1, 1980.

The paramount effect of the 1980 amendment to article V of the Florida Constitution was to again restructure the Supreme Court’s appellate jurisdiction so that' in most cases the district courts were final appellate courts. Shortly after the adoption of this 1980 amendment, this Court affirmed its understanding that the effect of the amendment was to ensure that the district courts would be “final” courts of appeal. In Jenkins v. State, 385 So.2d 1356, 1359 (Fla.1980), this Court stated:

There can be little doubt that the electorate was informed as to .this matter, because opponents of the amendment broadcast from one end of this state to the other that access to the Supreme Court was being “cut off,” and that the district courts of appeal would be the only and final courts of appeal in this state. With regard to review by conflict certiorari of per curiam ded-sions rendered without opinion, they were absolutely correct.

The pertinent language of section 3(b)(3), as amended April 1, 1980, leaves no room for doubt. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of a district court of another district court of appeal or the Supreme Court on the same question of law.

Article V of the Florida Constitution remains as it was amended in 1980. The restrictions placed on review of district court decisions by the Florida Supreme Court have been the subject of commentary.

In 1980, this Court issued two other decisions which are relevant and important to this analysis. These decisions were: Stanfill v. State, 384 So.2d 141 (Fla.1980), and Witt v. State, 387 So.2d 922 (Fla.1980).

In Stanfill, this Court unequivocally and expressly stated: “The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” 384 So.2d at 143. Stanfill was followed in 1992 with Pardo v. State, 596 So.2d 665, 666 (Fla.1992), in which this Court ruled that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Most recently, this Court reiterated this principle in Gore v. Harris, 772 So.2d 1243, 1258 (Fla.), rev’d on other grounds, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), stating that “[t]his Court has determined the decisions of the district courts of appeal represent the law of this State unless and until they are overruled by this :Court, and therefore, in the absence of interdis-trict conflict, district court decisions bind all Florida trial courts.” Thus, a decision of a Florida district court of appeal is the law throughout all of Florida on a particular point of law until there is a different rule by another district court or until this Court renders a different rule. Chief Justice Austead states in his dissent that I make an “extraordinary assertion that some district court of - appeal decisions have binding statewide effect on Florida law.” Of course, the assertion I make is not extraordinary but, rather, is based precisely on this Court’s precedent. He can choose to disavow the precedent in which he joined, he can choose to ignore it, but the constitutional court structure of Florida and the precedent of this Court are as I have set out. They are real, ordinary, consistent, and directly on point.

Justice Pariente’s conclusion that the majority opinion will result in Bunkley “serving out a life sentence for conduct that all times material to his prosecution and conviction did not constitute'the crime of armed burglary” is patently incorrect based upon the Florida Constitution and this Court’s precedent. Pariente, J., dissenting op. at 81. A decision of this Court does not, under Florida precedent, erase and make disappear the law of Florida announced by the district court in a decision which is final and which is in effect until this Court changes the law. The person convicted of violating the law remains convicted under the law of Florida which was in effect, at the time .the person was convicted, just as the person would remain convicted after the Legislature changed the law under which the person was convicted subsequent to the person’s conviction. See Magaw v. State, 537 So.2d 564 (Fla.1989); Moore v. State, 748 So.2d 1094 (Fla. 3d DCA 2000). For more than a century, the law of Florida has been that “[rjepeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Art. X, § 9, Fla. Const.

In Witt, this Court issued what has become the Florida hallmark decision on the application of later decisional law to petitions for postconviction relief under Florida Rule of Criminal Procedure 3.850. As Fiore argued before the Third Circuit in Fiore v. White, 149 F.3d at 225-26, Witt contended that Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), entitled him to retroactive application of decisions of this Court to his post-conviction motion. This Court declined to follow Davis, stating:

We start by noting that we are not obligated to construe our rule concerning post-conviction relief in the same manner as its federal counterpart, at least where fundamental federal constitutional rights are not involved. First, the concept of federalism clearly dictates that we retain the authority to determine which “changes of law” will be cognizable under this state’s post-conviction relief machinery. Second, we know of no constitutional requirement that the scope of Rule 3.850 be fully congruent with that of the analogous federal statute. A limited role for the rule in no way abridges the federal due process right to be heard, since state prisoners will still be free to seek collateral relief in the federal courts under that system’s seemingly more relaxed standards. In fact, several commentators have argued forcefully that state courts should narrow their grounds for collateral relief because of the duality of review, and at least one state has limited post-conviction relief narrowly to constitutional claims.

Not being required to accord Davis breadth to post-conviction proceedings under our rule, we decline to do so. To allow nonconstitutional claims as bases for post-conviction relief is to permit a dual system of trial and appeal, the first being tentative and nonconclusive. Our justice system could not accommodate such an expansion; our citizens would never tolerate the deleterious consequences for criminal punishment, deterrence and rehabilitation. We reject, therefore, in the context of an alleged change of law, the use of post-conviction relief proceedings to correct individual miscarriages of justice or to permit roving judicial error corrections, in the absence of fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding.

Witt, 387 So.2d at 928-29 (footnotes omitted).

This Court went on to state what changes in the law would be applicable under rule 3.850.

We emphasize at this point that only major constitutional changes of law will be cognizable in capital cases under Rule 3.850. Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, 433 U.S. 584[, 97 S.Ct. 2861, 53 L.Ed.2d 982] (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter. Gideon v. Wainwright, of course, is the prime example of a law change included in this eategory.[n.]

[n.] Compare Gideon with Linkletter v. Walker, 381 U.S. 618[, 85 S.Ct. 1731, 14 L.Ed.2d 601] (1965), wherein the Supreme Court refused to give retroactive application to the newly-announced exclusionary rule of Mapp v. Ohio, 367 U.S. 643[, 81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961).

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Incidental to the notion of what constitutes a law change for post-conviction relief purposes is the problem of what courts bring about such changes. Even within the narrow area of major constitutional law changes, there must be some restriction on the number of tribunals which can adopt law changes sufficient to warrant relief in post-conviction proceedings. The reason is obvious. In Florida alone there- are 500 trial court judges, 39 district court judges sitting in panels of three on five appellate courts, and the Supreme Court. Little finality would attend criminal convictions if each of these tribunals was an eligible source of law change. Similar considerations apply to the host of federal and other non-Florida judges from whom new “law” might emerge. Consequently, -we hold that only this Court and the United States Supreme Court can adopt a change of law sufficient .to precipitate a post-conviction challenge to a final conviction and sentence.

Witt, 387 So.2d at 929-30 (footnotes omitted).

Following Witt, in 1987, this Court began releasing a series of decisions which dealt with the precise issue decided by the Pennsylvania Supreme Court in its response to the United States Supreme Court. In Bass v. State, 12 Fla. L. Weekly 289 (Fla. June 11, 1987), withdrawn, 530 So.2d 282 (Fla.1988), this Court rendered an initial opinion as to whether this Court’s decision in Palmer v. State, 438 So.2d 1 (Fla.l983), in which this Court had construed section 775.087, Florida Statutes, was applicable to Bass. Bass had previously been sentenced under- a different construction of section 775.087, which had been affirmed by the district court of appeal prior to this Court’s décision in Palmer. Bass thereafter sought postconviction relief in accordance with Palmer. In language directly on point to the issue now before this Court, the majority in Bass stated:

The principle issue before this Court is whether the Palmer decision constitutes a change in the substantive law of sentencing or does it merely interpret pre-existing statutory law. In Palmer, this Court considered the scope of the trial court’s discretion to impose consecutive sentences under section 775.087, Florida Statutes (1981). The Court held that the legislature did not intend, by enacting that statute, to allow the “stacking” of consecutive mandatory minimum sentences arising out of the single criminal episode. The Court reasoned that the discretion to do so statutorily belonged to the Parole and Probation Commission because such sentence stacking directly affected parole computations.

Palmer does not represent a substantive change in the law. Rather, in Palmer, this Court merely interpreted statutory provisions and corrected errors in the imposition of a statute which existed prior to our decision in Palmer. That opinion did not announce any new changes in the law itself. It simply examined the statute and corrected mistakes in its implementation.

Because we believe that Palmer does not represent any change in law, we need not examine the issue of whether violation of that decision is fundamental error. Nor do we here consider whether Palmer should retroactively apply. Our determination that Palmer did not change the law of sentencing in any substantive way necessarily precludes examination of those issues.

Bass, 12 Fla. L. Weekly at 289.

In a dissent which was prescient as to the critical response the majority opinion received, as well as to the present analysis, Justice Ehrlich spotted the problem with the majority’s analysis and wrote in dissent:

In order to reach a result it believes to be mandated by fairness and uniformity, the majority opinion turns our decision in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067[, 101 S.Ct. 796, 66 L.Ed.2d 612] (1980), on its head. Because the majority’s reasoning is both illogical and contrary to the proper understanding of this Court’s relationship to the district courts, and because the result reached undermines society’s need for finality powerfully explicated in Witt, I dissent.

The majority attributes controlling significance to the fact that Palmer did not “change” the law, but merely interpreted pre-existing statutory law. I respectfully suggest that this statement cannot withstand analysis.

The district courts of appeal are, in most instances, courts of last resort, Johns v. Wainwright, 253 So.2d 873 (Fla.1971), and the “decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).

The decision of the First District Court of Appeal in Palmer is not a case of first impression, see Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980) (approving consecutive mandatory minimum three year sentences for robbery and kidnapping in spite of the defendant’s claim that both offenses arose from the same episode). Therefore, the district courts’ decisions in Palmer and Davis were the law in this state until this Court changed the law and interpreted the statute at issue contrary to the district courts’ interpretation.

Under the majority’s reasoning, however, we did not “change” the law! The fact that we took a contrary view of the statute at issue in Palmer than did the district courts clearly evidences that we did change the law in Florida on this issue. Taken to its logical conclusion, therefore, the majority holds that until this Court decides any issue, there is no extant law.

This simple observation totally erodes the majority’s major premise that Palmer did not change the law. Of course it did. Under the district courts’ view, a trial judge could impose consecutive mandatory minimum three year sentences pursuant to section 775.087(2), for each separate crime committed during a single criminal episode. Palmer v. State, 416 So.2d 878, 881 (Fla. 1st[4th] DCA 1982). This Court, however, found that the statute did not authorize denying eligibility for parole consideration for any more than three years when the offenses occurred during a single criminal episode. Palmer v. State, 438 So.2d 1, 3 (Fla.1983).

The fact that this Court changed the law did not render th