EFTA00731431.pdf

upreme Court of oliortba No. SC07-128 DONALD DEAN KASISCHICE, Petitioner, vs. STATE OF FLORIDA, Respondent. [July 10, 2008] CANTERO, J. We review a statute that requires judges to impose conditions of probation on sexual offenders. At issue is whether the statute prohibits sexual offenders serving probation or community control from possessing any pornographic material at all or only such material relevant to the offender's deviant behavior. In the decision below, Kasischke v. State, 946 So. 2d 1155, 1159 (Fla. 3d DCA 2006), the Third District Court of Appeal held that offenders cannot possess any such material. Its decision expressly and directly conflicts with the Second District Court of Appeal's decision in Taylor v. State, 821 So. 2d 404, 405-06 (Fla. 2d DCA 2002), which held that a condition prohibiting the defendant from "viewing, EFTA00731431 owning, or possessing obscene, pornographic, or sexually explicit material," must relate to the defendant's "particular deviant behavior pattern." We have jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. Because, as the Third District acknowledged, the statute "is undeniably susceptible to multiple and irreconcilable interpretations," 946 So. 2d at 1157-58, we apply the rule of lenity. We therefore quash the decision below and approve the Second District's decision in Taylor. I. FACTS AND PROCEDURAL HISTORY The facts on which the underlying convictions are based are explained in the district court's opinion. Leg Kasischke, 946 So. 2d 1156. For our purposes, suffice it to say that the Petitioner, Donald Kasischke, pled guilty to three counts each of lewd or lascivious battery and exhibition on a child under age sixteen. He was sentenced to 364 days in prison, followed by two years of community control and eight years of probation. Section 948.03(5)(a), Florida Statutes (1999), requires that courts impose several conditions on sexual offenders receiving probation or community control. For example, defendants are subject to a curfew; they cannot live within 1000 feet of certain places, such as schools, where children congregate; and they must successfully complete a sexual offender treatment program. Another condition that must be imposed—the one relevant here—is the following: -2- EFTA00731432  Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern. § 948.03(5)(a)(7), Fla. Stat. (1999).' The Petitioner's plea agreement included such a condition.2 After he had been released from prison, and while he was serving his community control, a search of his home revealed allegedly "obscene, pornographic, or sexually stimulating" photographs, as well as a pornographic videotape. His community control was revoked and he was ordered incarcerated. The parties do not dispute the pornographic nature of the videotape. They disagree, however, about whether the Petitioner's possession of these materials violated his community control. The State argues that his conditions forbid possession of any obscene or pornographic material, while the Petitioner argues that they only prohibit possession of such material relevant to his particular deviant 1. This statute has been renumbered as section 948.30(1)(g), Florida Statutes (2007) ("Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern."). 2. Specifically, the condition stated: "The Defendant is prohibited from viewing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs or computer services that are relevant to the offender's deviant behavior pattern, unless otherwise indicated in the offender's treatment plan." -3 EFTA00731433 behavior (in his case, paying a fifteen-year-old boy to allow him to perform oral sex on the boy and masturbating in the boy's presence). On appeal, the Third District concluded that the statute was ambiguous. However, it analyzed the statute's legislative history, including a staff analysis explaining a 1997 amendment, and concluded that the Legislature intended to ban possession of all pornographic materials. Kasischke 946 So. 2d at 1159. In contrast, in a similar case, the Second District interpreted the same condition, albeit superficially, to prohibit only possession of materials relevant to the defendant's "particular deviant behavior pattern." Taylor, 821 So. 2d at 405-06. We granted review to resolve the conflict. agg Kasischke v. State, 954 So. 2d 1156 (Fla. 2007) (granting review). II. ANALYSIS The issue we consider is whether the statute prohibits possession of all pornographic materials, or only those "relevant to the offender's deviant behavior pattern." Although we quoted the statute above, because its language is central to our analysis, it bears repeating. It requires that any order imposing probation or community control include "a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern." § 948.03(5)(a)(7), -4- EFTA00731434 Fla. Stat. (1999). The specific question is which part of the sentence is modified by the phrase "relevant to the offender's deviant behavior pattern"? The State argues that the phrase modifies "sexually stimulating visual or auditory material," which would mean that the statute prohibits possession of all obscene and pornographic material, as well as "sexually stimulating visual or auditory material. . . relevant to the offender's deviant behavior pattern." The Petitioner, on the other hand, argues that the phrase modifies "obscene, pornographic, or sexually stimulating visual or auditory material," so that the statute prohibits possession only of such material that is relevant to his deviant behavior. The dissents take a third view (one not advanced by either party here),3 suggesting that "relevant to the offender's deviant behavior pattern" relates only to "telephone, electronic media, computer programs, or computer services." Lewis, J., dissenting op. at 28; Bell, J., dissenting op. at 53. For the reasons explained below, we find section 948.03(5)(a)(7), Florida Statutes (1999), ambiguous. We therefore apply the rule of lenity and hold that the phrase "relevant to the offender's deviant behavior pattern" modifies each of the statutory prohibitions. 3. Although Justice Lewis suggests otherwise, Lewis, J., dissenting op. at 37 note 21, in response to questioning at oral argument, the State clarified that its argument was that "relevant to the offender's deviant behavior pattern" modifies "sexually stimulating visual or auditory material." We also note that the State conceded at oral argument that the language of the statute is ambiguous. -5 EFTA00731435  A. Plain Language "The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review." Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006), cert. denied, 127 S. Ct. 1268 (2007). When construing a statute, we strive to effectuate the Legislature's intent. See, e.g., Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006) ("We endeavor to construe statutes to effectuate the intent of the Legislature."). To determine that intent, we look first to the statute's plain language. Id. at 595. "[W]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Id. (quoting Daniels v. Fla. Dep't of Health, 898 So. 2d 61, 64 (Fla. 2005)). We agree with the district court that this statute "is undeniably susceptible to multiple and irreconcilable interpretations." Kasischke, 946 So. 2d at 1157-58. The plain language of the statute could be construed in at least four ways: (1) as prohibiting all obscene, pornographic, or sexually stimulating material, as well as any telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern, see Bell, J., dissenting op. at 53; (2) as clarifying that "telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern" are within the ban on "obscene, pornographic, or sexually stimulating" material, see -6- EFTA00731436 Lewis, J., dissenting op. at 28; (3) as prohibiting only such material relevant to the offender's deviant behavior pattern; and (4) as prohibiting all obscene and pornographic material, but prohibiting sexually stimulating visual or auditory material only when relevant to the offender's deviant behavior pattern. Therefore, as did the district court, see 946 So. 2d at 1158, we find the statute ambiguous. We cannot rely solely on its plain language to discover the legislative intent. Justice Lewis concludes that the plain language of the statute demonstrates that the Legislature intended the entire clause "including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern" as merely illustrating a category of materials within the ban on "any obscene, pornographic, or sexually stimulating material." Lewis, J., dissenting op. at 28. In other words, Justice Lewis argues that the Legislature intended to clarify that "Internet-based and other forms of electronic obscenity and pornography" were within the prohibition. Id. at 36. If this were the case, however, the Legislature could have ended the sentence after the phrase, "including telephone, electronic media, computer programs, or computer services." Under Justice interpretation, these materials would be prohibited whether or not relevant to the offender's deviant behavior. But the Legislature did not end there; it added the phrase "that are relevant to the offender's deviant behavior pattern." This phrase must modify something. See, e.g., Martinez v. State, 981 -7 EFTA00731437 So. 2d 449, 452 (Fla. 2008) ("It is a basic rule of statutory construction that `the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.'" (quoting State v. Bodden, 877 So. 2d 680, 686 (Fla. 2004))). We cannot construe the plain language of the statute in a manner that renders this language superfluous. B. Exploring Legislative History The State argues that in determining the Legislature's intent, we should also review the statute's legislative history, and that the history supports the State's interpretation. Although not advanced by the parties, the dissents suggest that the bill title clarifies the Legislature's intent. Lewis, J., dissenting op. at 41-42; Bell, J., dissenting op. at 54-56. We now address these arguments. Before 1997, the prohibition on obscene or pornographic materials read: Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually explicit material. § 948.03(5)(g), Ha. Stat. (1995). Clearly, under this provision, the Legislature intended a total ban on obscene, pornographic, or sexually explicit material. In 1997, the Legislature amended this language as follows: -8- EFTA00731438  Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory explieit-material including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern. Ch. 97-308, § 3, at 5520, Laws of Fla. (1997).4 Given that the previous version of the statute already prohibited the possession of sa "obscene, pornographic, or sexually explicit material," the 1997 amendment seems intended to narrow the prohibition's scope.5 This is consistent with Kasischke's proffered reading of the statute. 4. Words stricken are deletions and words underlined are additions. 5. Justice Bell notes that "[o]ther jurisdictions frequently condition a sex offender's ability to live in the community on total abstinence from sexual materials as well as the Internet and other computerized/telephonic equipment that facilitate one's access to prohibited materials." Bell, J., dissenting op. at 59 note 34 (citing United States v. Ristine, 335 F.3d 692 (8th Cir. 2 United States v. Taylor, 338 F.3d 1280 (11th Cir. 2003), State v. Ehli, 681 .2d 808 2004), and People v. Harrisson 36 Cal. Rptr. 3d 264 (Cal. Dist. Ct. App. 2005)). However, the cases cited involve language much broader than the language in this statute. Sgs Ristine 335 F.3d at 694 (upholding under a plain error standard, among others, special conditions prohibiting the defendant from "owning or possessing `any pornographic materials,'" and from having Internet service at his house); Taylor, 338 F.3d at 1285 (upholding a special condition of probation prohibiting the defendant from "using or possessing a computer with Internet access"); Ehli, 681 .2d at 810 (upholding a condition prohibiting the defendant from using the Internet); Harrisson, 36 Cal Rptr. 3d at 266, 271 (upholding a condition prohibiting use of the Internet "in any way whatsoever"). Thus, they do not inform our analysis. -9- EFTA00731439  The dissenting justices cite the bill title as indicating that the Legislature intended to keep the broad ban on obscene and pornographic materials and either clarify that "telephone, electronic media, computer programs, or computer services" are within the ban, Lewis, J., dissenting op. at 41-42, or add to it a ban on "telephone, electronic media, computer programs, or computer services" relevant to the offender's deviant behavior, Bell, J. dissenting op. at 54-56. We certainly agree that the bill title may be helpful in determining legislative intent. See, e.g., Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 25 (Fla. 2004) (quoting State v. Webb, 398 So. 2d 820, 824-25 (Fla. 1981)). We disagree, however, that in this case the bill title reveals the Legislature's intent one way or the other. The title to chapter 97-308, Laws of Florida, states in pertinent part: An act relating to sex offenders; . . . amending section 948.03, F.S.; requiring a curfew between specified hours; providing alternatives; revising requirements for treatment for sex offenders; revising a provision that prohibits a sex offender from viewing, owning or possessing certain materials; prohibiting a sex offender from possessing telephone, electronic media, or computer programs or services that are relevant to the offender's behavior pattern; . . . . Ch. 97-308, Laws of Fla. The dissents suggest that the clause "prohibiting a sex offender from possessing telephone, electronic media, or computer programs or services that are relevant to the offender's behavior pattern" in the bill title demonstrates that the phrase "relevant to the offender's deviant behavior pattern" - 10- EFTA00731440 is limited to "telephone, electronic media, or computer programs or services." Lewis, J., dissenting op. at 41-42; Bell, J., dissenting op. at 54-56. We disagree. This language in the bill title merely tracks the amendment to the statute; it does not clarify how that language is to be interpreted in relation to the remainder of the subsection. This ambiguity is further highlighted by the immediately preceding clause in the bill title, which states that it "revis[es] a provision that prohibits a sex offender from viewing, owning or possessing certain materials." Ch. 97-308, Laws of Ha. (emphasis added). If anything, this suggests that the Legislature did not intend to leave the broad ban intact, but instead intended to revise the entire provision. In short, the bill title simply does not clarify the ambiguities in the statute. Justice Bell argues that the bill title demonstrates the Legislature's intent to keep the total ban on obscene and pornographic materials and add to it a ban on "telephone, electronic media, or computer programs or services that are relevant to the offender's behavior pattern." Bell, J., dissenting op. at 56. This interpretation, however, would require us to replace "including" in the statute with "as well as" or "and." To illustrate, if the Legislature intended to simply add a prohibition on relevant telephone, electronic media, and computer programs or services to the total ban on obscene and pornographic materials, it would have amended the provision to read as follows: EFTA00731441  Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including-as well as telephone, electronic media, computer program, or computer services that are relevant to the offender's deviant behavior. The Legislature did not include such language, and we cannot add it on our own. See, e.g., State v. City of Fort Pierce, 88 So. 2d 135, 137 (Fla. 1956) ("It is not the province of this Court to rewrite the acts of the Legislature."). The State asks us to dive even deeper into the legislative history. It argues that a Senate Staff Analysis addressing the amendment, and the results of study by the National Institute of Justice (NIJ) cited there, demonstrate that the Legislature did not intend to narrow the broad ban on pornographic and obscene materials. See Fla. S. Comm. on Crim. J., CS/SB 1930 (1997) Staff Analysis (April 8, 1997) (on file with the Florida State Archives) [Staff Analysis] (citing Kim English, et al., Managing Adult Sex Offenders in the Community—A Containment Approach, Nat'l Inst. Just. 1 (Jan. 1997) [NIJ report]). As we recently noted, "[t]his Court is not unified in its view of the use of legislative staff analyses to determine legislative intent." GTC, Inc. v. Edgar, 967 So. 2d 781, 789 n.4 (Fla. 2007); see also White v. State, 714 So. 2d 440, 443 n.5 (Fla. 1998) (recognizing that staff analyses are not determinative of legislative intent, but are only "one touchstone of the collective legislative will" (quoting SunBank/South Fla., . v. Baker, 632 So. 2d 669, 671 (Fla. 4th DCA 1994))); - 12- EFTA00731442 American Home Assur. Co. v. Plaza Materials Corp., 908 So. 2d 360, 376 (Fla. 2005) (Cantero, J., concurring in part and dissenting in part) (proposing that "legislative staff analyses add nothing to an investigation of legislative intent"). In any event, a defendant on probation or community control cannot be expected to research staff analyses to determine whether particular conduct is permitted. The language of the statute should be enough. Assuming that staff analyses can ever assist in determining legislative intent, in this case it is at best inconclusive. For example, the Staff Analysis states that the amendment would "clarify the condition of probation, community control, and conditional release that prohibits the possession, viewing, or use of sexually `explicit' material to be sexually stimulating visual or auditory material that would include telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern." Staff Analysis at 8. This sentence supports the State's argument that the Legislature intended to retain the total ban on pornographic or obscene material, and also to prohibit sexually stimulating material to the extent "relevant to the offender's deviant behavior pattern." The Staff Analysis also indicates, however, that the amendment was based, at least in part, on the NIJ report. See Staff Analysis at 6-7 (detailing the NIJ report). That report proposed a five-part model containment process for managing adult sex offenders. NIJ report at 3. The Staff Analysis notes that one - 13 - EFTA00731443 of the components of managing adult sex offenders is "utilizing sex offender- specific containment strategies," "focus[ing] on a containment approach to case processing and case management that can be tailored to the individual sex offender and his or her deviant sexual history." Staff Analysis at 7-8 (emphasis added) (quoting NIJ report at 3). The NIJ report also indicates that priorities include "individualized treatment, supervision, and surveillance," with "sex offender- specific probation or parole conditions." NIJ report at 5. One of the recommended offender-specific conditions is strikingly similar to that at issue here: "You shall not possess any pornographic, sexually oriented, or sexually stimulating visual, auditory, telephonic, or electronic media and computer programs or services that are relevant to your deviant behavior pattern." Id. at 5, 9 (suggesting "individualized supervision plans for adult sex offenders according to their particular risk factors"). This passage supports the Petitioner's argument that the Legislature intended to focus on the particular offender's deviant behavior and tailor the prohibitions accordingly. Thus, some language from the Staff Analysis suggests an intent to retain the total ban on pornographic and obscene material and add a prohibition on possessing "sexually stimulating material" that is "relevant to the offender's deviant behavior pattern"; while other language suggests an intent to focus all - 14- EFTA00731444 prohibitions on the offender's specific deviant behavior. 6 Therefore, even if staff analyses may sometimes help in determining legislative intent, and even if we could expect defendants to review them to determine what conduct was permitted, the Staff Analysis here fails to clarify the Legislature's intent. C. Applying the Canons of Statutory Construction Where legislative intent is unclear from the plain language of the statute, we look to canons of statutory construction. Joshua v. City of Gainesville 768 So. 2d 432, 435 (Fla. 2000) ("[I]f the language of the statute is unclear, then rules of statutory construction control."). One such canon is the doctrine of the last antecedent, under which "relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote." City of St. Petersburg v. Nasworthy, 751 So. 2d 772, 774 (Fla. 1st DCA 2000). The last antecedent is "the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 47.33 (7th ed. 2007). 6. Justice Lewis suggests that the Legislature amended the statute in 1997 in response to the growth of Internet-based and other forms of electronic pornography. Lewis, J., dissenting op. at 36-37. While it is plausible that some legislators had this concern, the Staff Analysis does not mention Internet growth, and the NIJ report specifically recommended a condition similar to that at issue here without mentioning concerns regarding growth of the Internet. See ND Report at 5. - 15 - EFTA00731445  Commentators have questioned the doctrine's utility. See Terri LeClercq, Doctrine of the Last Antecedent: The Mystifying Morass of Ambiguous Modifiers, 2 J. Legal Writing Inst. 81, 89 (1996) ("[R]ather than becoming `one more aid' in interpretation as Sutherland hoped, the Doctrine of Last Antecedent has, in its hundred-plus year history, created as much confusion and disagreement as the ambiguous modifiers its drafter set out to clarify."). The very formulation of the doctrine recognizes its application only where "no contrary intention appears." Singer & Singer, supra, § 47:33 ("Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent."). As Statutes and Statutory Construction explains, "[t]he rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent." Id.; see also Barnhart v. Thomas, 540 U.S. 20, 26 (2003) ("While [the doctrine of last antecedent] is not an absolute and can assuredly be overcome by other indicia of meaning, we have said that construing a statute in accord with the rule is `quite sensible as a matter of grammar.' (quoting Nobelman v. Am. Savings Bank, 508 U.S. 324, 330 (1993))); Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920) ("When several words are followed by a clause which is applicable as much to the first and other words as to - 16- EFTA00731446 the last, the natural construction of the language demands that the clause be read as applicable to all."). One commentator has explained that the doctrine itself requires interpretation: Sutherland begins with what seems the fall-back rule of statutory interpretation and concludes with his specific point. He begins with a qualifier, that interpreters should use the Doctrine of Last Antecedent "where no contrary intention appears." Appears where? Within the phrase or within the document as a whole? In the notes of the committee that wrote the original rule? If the language offers no "contrary intention," then the meaning is already "plain." If the contrary intent shows up within the sentence itself, then there is no need for the rule. And legislative intent or the drafter's intent is usually in question to begin with, so that search rarely clarifies the sentence in question. . . . Thus the Sutherland rule is a jumble. LeClercq, supra at 92-93 (footnotes omitted). In any event, applying the doctrine here does not result in the State's suggested construction, which is that the phrase, "that are relevant to the offender's deviant behavior pattern" qualifies "sexually stimulating visual or auditory material." To reach this construction, we would have to insert a comma at the end of the intervening phrase "including telephone, electronic media, computer programs, or computer services." To explain, "commas are used to set off expressions that provide additional but nonessential information about a noun or pronoun immediately preceding. Such expressions serve to further identify or explain the word they refer to." William A. Sabin, The Gregg Reference Manual 34 (10th ed. 2005). These expressions are parenthetical, meaning that the sentence - 17 - EFTA00731447 can stand alone without them. When an expression is essential to the sentence, however, it is not separated with commas. Id. at 35; see also State v. Tunney, 895 P.2d 13, 16 (Wash. Ct. App. 1995) ("Under the rules of punctuation, appositives which serve a nonrestrictive (parenthetic) function are set off by commas; appositives which serve a restrictive (necessary) function are not."), 917 P.2d 95 (Wash. 1996); Xcel Corp. v. Dir., Div. of Taxation, 4 M. Tax 85, 89 (E. Tax Ct.) ("It is an elementary rule of grammar that commas are used to set off nonrestrictive appositives, which are nouns that immediately follow and provide additional but nonessential information about another noun in the sentence."), M, 5 M. Tax 480 Super. Ct. App. Div. 1982). "Evidence that a qualifying . phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma." Singer & Singer, supra, § 47:33. Thus, to reach the State's proffered construction, we would have to read the phrase "including telephone, electronic media, computer programs, or computer services" as an appositive phrase that provides nonessential explanatory information about the immediately preceding phrase—"sexually stimulating visual or auditory material." So construed, removing the phrase would make the sentence read, "or sexually stimulating visual or auditory material. . . that are relevant to the offender's deviant behavior pattern." - 18 - EFTA00731448  The problem with such a construction is that the Legislature did not isolate with commas the phrase "including telephone, electronic media, computer programs, or computer services." We cannot read it as a parenthetical phrase by inserting a comma ourselves. See Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) ("We have no authority to insert punctuation marks which are not there in order to engraft upon the Act our notion of what the Legislature intended or should have intended.").7 Instead, under the doctrine of last antecedent, the last phrase would qualify the immediately preceding phrase, so that "relevant to the offender's deviant behavior pattern" would modify only "electronic media, computer programs, or computer services." See State ex rel. Owens v. Pearson, 156 So. 2d 4, 6 (Fla. 1963) ("[F]ollowing an enumeration in a series, a qualifying phrase will be read as limited to the last of the series when it follows that item without a comma or other indication that it relates as well to those items preceding the conjunction."); 48A 7. We note that even inserting a comma would not necessarily eliminate the ambiguity. The statute would then require "a prohibition on viewing . . . any obscene, pornographic, or sexually stimulating . . . material, including telephone, electronic media, computer programs, or computer services[,] that are relevant to the offender's deviant behavior." The statute could still be interpreted to prohibit only materials relevant to the offender's deviant behavior. If the Legislature intended to prohibit possession of all obscene or pornographic materials, as well as prohibit sexually stimulating material relevant to the offender's deviant behavior, it could have phrased the statute as follows: "a prohibition on . . . possessing any obscene or pornographic material, or any sexually stimulating . . . material that are relevant to the offender's deviant behavior, including telephone, electronic media, computer programs, or computer services." - 19- EFTA00731449 Fla. Jur. 2d Statutes § 133 (2007) (recognizing that under the doctrine of last antecedent, "a qualifying phrase in a statute is read as limited to the last item in a series when the phrase follows that item without a comma"). That interpretation, however, would lead to the absurd result that an offender would be prohibited from "viewing, owning, or possessing" all "obscene, pornographic, or sexually stimulating visual or auditory material" in print form, but not the same material in "telephone, electronic media, computer programs, or computer services" unless it was "relevant to the offender's deviant behavior pattern." Possession of a "sexually stimulating" photograph would violate the statute, but possession of a computer image of that photograph would not unless it was relevant to the particular offender's deviant behavior pattern. We cannot apply the doctrine of last antecedent in a manner that leads to such a result. See, e.g., Warner v. City of Boca Raton, 887 So. 2d 1023, 1033 n.9 (Fla. 2004) ("[A] statutory provision should not be construed in such a way that it renders the statute meaningless or leads to absurd results."); City of St. Petersburg v. Siebold, 48 So. 2d 291, 294 (Fla. 1950) ("The courts will not ascribe to the Legislature an intent to create absurd . . . consequences, and so an interpretation avoiding absurdity is always preferred."); Haworth v. Chapman, 152 So. 663, 665 (Fla. 1933) ("There is a strong presumption against absurdity in a statutory provision; it being unreasonable to suppose that the Legislature intended their own stultification . . . ."). -20- EFTA00731450  The final possible interpretation of the last phrase is that it modifies the entire sentence so that defendants are prohibited from possessing any obscene, pornographic, or sexually stimulating material, but only to the extent the material is relevant to the offender's deviant behavior pattern. This interpretation seems at least as faithful an interpretation of the text as the others, if not more so. It has the benefit of prohibiting obscene, pornographic, and sexually stimulating material to the same extent and gives a logical meaning to the last phrase. Such an interpretation is also supported by another canon of statutory construction: the rule of lenity. In Florida, the rule is not just an interpretive tool, but a statutory directive. agg § 775.021(1), Fla. Stat. (2007) ("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."). The rule requires that "[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense." State v. Byars, 823 So. 2d 740, 742 (Fla. 2002) (emphasis added). As we have emphasized before, "lo]ne of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter."' Id. (quoting Perkins v. State, 576 So. 2d 1310, 1312 (Fla. 1991)). "Indeed, our system of jurisprudence is founded on a belief that everyone must be given sufficient notice of those matters that may result - 21 - EFTA00731451 in a deprivation of life, liberty, or property." Perkins, 576 So. 2d at 1312; see also United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (plurality opinion) ("Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them."); State v. Winters, 346 So. 2d 991, 993 (Fla. 1977) ("Penal statutes must be strictly construed in favor of the accused where there is doubt as to their meaning and must be sufficiently explicit so that men of common intelligence may ascertain whether a contemplated act is within or without the law, and so that the ordinary man may determine what conduct is proscribed by the statute."). We recognize that the rule of lenity is a canon of last resort. See, e.g., United States v. Shabani, 513 U.S. 10, 17 (1994) ("The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute."); cf. Bautista v. State, 863 So. 2d 1180, 1185 n.4 (Fla. 2003) (recognizing that the rule of lenity does not apply where legislative intent to the contrary is clear). As discussed above, however, and as the Third District acknowledged in this case, the statute "is undeniably susceptible to multiple and irreconcilable interpretations." 946 So. 2d at 1157. The dissenting justices have presented two of many possible interpretations of the statute. Their lengthy dissents to this opinion only highlight the difficulty in interpreting this hopelessly ambiguous statute. We have been unable otherwise to resolve this - 22 - EFTA00731452 ambiguity and cannot simply choose our preferred construction. We therefore apply the rule of lenity and hold that the limiting phrase "relevant to the offender's deviant behavior pattern" must be interpreted as qualifying each of the prohibitions in section 948.03(5)(a)(7).8 See Clines v. State, 912 So. 2d 550, 560 (Fla. 2005) (applying the rule of lenity to an ambiguous statute that "generate[d] differing reasonable constructions"). In other words, the Petitioner violated the statute only if the "obscene, pornographic, or sexually stimulating" material recovered from his home was relevant to his "deviant behavior pattern." That issue has not been addressed in this case and is outside the scope of the conflict. See. e.g., McEnderfer v. Keefe, 921 So. 2d 597, 597 n.1 (Fla. 2006) (declining to reach issues "that were either not directly addressed by the district court . . . or were merely implied or cursory, at best"); Gaines v. Sayne, 764 So. 2d 578, 586 (Fla. 8. Justice Bell argues that our decision leaves Florida courts and law enforcement with a "vague" restriction because it requires a determination as to what materials are relevant to the offender's "deviant behavior pattern." Bell, J., dissenting op. at 63-67. However, his argument ignores that the condition at issue is not required where the treatment plan provided by the sexual offender treatment program provides otherwise. § 948.03(5)(a)(7), Ha. Stat. (1999) (prefacing the condition at issue with "[u]nless otherwise indicated in the treatment plan provided by the sexual offender treatment program"). Further, any problem determining what materials are "relevant to the offender's deviant behavior pattern" is a function of the language used by the Legislature, not our decision today. We note that even under Justice Bell's view, Florida courts would be required to determine what "telephone, electronic media, computer programs, or computer services" are "relevant to the offender's deviant behavior pattern." - 23 - EFTA00731453 2000) (declining to address an issue outside the scope of the conflict). We therefore leave it for resolution on remand. III. CONCLUSION We hold that the phrase "relevant to the offender's deviant behavior pattern" qualifies each of the prohibitions in section 948.03(5)(a)(7), Florida Statutes (1999). An offender does not violate this condition unless the "obscene, pornographic, or sexually stimulating" material at issue is relevant to the "deviant behavior pattern." We therefore approve the Second District's decision in Taylor and quash the Third District's decision in Kasischke. We remand this case to the district court with instructions that it be returned to the trial court for further proceedings consistent with this opinion. It is so ordered. QUINCE, C.J., and WELLS, ANSTEAD, and PARIENTE, JJ., concur. LEWIS, J., dissents with an opinion. BELL, J., dissents with an opinion. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. LEWIS, J., dissenting. This case involves interpretation of section 948.03(5)(a)(7), Florida Statutes (1999), which is a default term of probation and community control for Florida's convicted sexual offenders. This question of statutory interpretation is subject to - 24 - EFTA00731454 de novo review. See, e.g., Daniels v. Fla. Dep't of Health, 898 So. 2d 61,64 (Fla. 2005). The 1999 version of section 948.03(5)(a)(7),9 reads as follows: Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern. (Emphasis supplied.) The majority opinion does not adequately address the presence or significance of (1) the adjective "any," m (2) the participle "including," II (3) the comma preceding "including," which further indicates that 9. In 2004, the Legislature transferred the language contained in the 1999 version of section 948.03(5)(a)(7) to section 948.30(1)(g), Florida Statutes. See ch. 2004-373, § 18, at 2826-27, Laws of Fla. In 2005, the Legislature amended section 948.30(1)(g) by adding "accessing" to the total prohibition against convicted sexual offenders "viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material." Ch. 2005-67, § 4, at 467, Laws of Fla.; § 948.30(1)(g), Fla. Stat. (2005) (emphasis supplied). 10. See Webster's Collegiate Dictionary 53 (10th ed. 1996) ("any . . . adj. . . . unmeasured or unlimited in amount, number, or extent" (emphasis supplied)). 11. ate Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) ("[T]he term `including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle." (emphasis supplied)); see also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189 (1941) (substantially similar); Black's Law Dictionary 777-78 (8th ed. 2004) ("The participle including typically indicates a partial list . . But some drafters use phrases such as including without limitation and including but not limited to— which mean the same thing." (emphasis supplied)). - 25 - EFTA00731455 the entire clause introduced by "including" is illustrative,'2 or (4) a series of intervening nouns.13 When one reads section 948.03(5)(a)(7) it is apparent that the clause "including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern," is merely illustrative and indicates that these materials fall within the general ambit of the total prohibition against the sexual offender "viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material." Cf. Wagner v. Botts, 88 So. 2d 611 (Fla. 1956).14 The grammatical structure and phrasing of this default term of sexual-offender probation and community control 12. State v. Bodden, 877 So. 2d 680, 685 (Fla. 2004) ("[T]he legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of an act but to the manner in which it is punctuated." (quoting Fla. State Racing v. Bourquardez 42 So. 2d 87, 88 (Fla. 1949)) (emphasis supplied)). 13. ee State ex rel. Owens v. Pearson, 156 So. 2d 4, 5 (Fla. 1963) (describing the rule of the last antecedent). 14. In Wanner, this Court interpreted the following language of chapter 27537, Laws of Florida (1951), as "clear and unambiguous": "The Civil Service is hereby divided into the unclassified and classified service. The unclassified service shall comprise: . (g) Persons of highly technical or professional training including registered nurses employed by Escambia General Hospital." 88 So. 2d at 612-13 (emphasis supplied). Specifically, the Court held that the clear language of the law mandated that a cartographer employed by Escambia County fell within the ambit of the descriptive clause "[p]ersons of highly technical or professional training," and that the language "including registered nurses employed by Escambia General Hospital," was purely illustrative. Id. (emphasis supplied). - 26 - EFTA00731456 simply does not admit of any other reasonable interpretation; therefore, the rule of lenity does not apply. See, e.g., Clines v. State, 912 So. 2d 550, 560 (Fla. 2005) ("[T]he rule [of lenity] `is applicable to sentencing provisions' if they `create ambiguity or generate differing reasonable constructions.' " (quoting Nettles v. State, 850 So. 2d 487, 494 (Fla. 2003) (emphasis supplied)); Wallace v. State, 860 So. 2d 494, 497-98 (Fla. 4th DCA 2003) ("Application of [the] rule [of lenity] means that if there is a reasonable construction of a penal statute favorable to the accused, the court must employ that construction." (emphasis supplied)). The majority spurns the intent of the Legislature, as expressed through the plain text of the statute, and similarly runs afoul of several canons of statutory construction. For these reasons, I must respectfully dissent. I. ANALYSIS A. The Plain Text of Section 948.03(5)(a)(7) The plain text of section 948.03(5)(a)(7) clearly conveys the intent of the Legislature. Further, "the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." Daniels, 898 So. 2d at 64. Here, the plain text neither leads to an absurd outcome nor results in the creation or perpetuation of an unintended evil. Therefore, the analysis of the majority should have concluded with the plain text of the statute without applying such doctrines as the rule of lenity. - 27 - EFTA00731457  The Legislature has not in any way indicated an intent to abandon the total prohibition against sexual offenders "viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material." § 948.03(5)(a)(7), Fla. Stat. (1999) (emphasis supplied). Rather, the Legislat