DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DERICK ROSENWALD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-2886

[October 23, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Andrew L. Siegel, Judge; L.T. Case No. 06-10400CF10A.

J. David Bogenschutz and Jaclyn E. Broudy, of J. David Bogenschutz 

& Associates, P.A., Fort Lauderdale, for appellant.

No appearance required for appellee.

FORST, J.

Appellant filed a petition in this court seeking expedited review of the 

trial court’s August 27, 2019 order that summarily denied his motion for 

postconviction relief. By separate order, we have determined to treat this 

petition as both a timely-filed notice of appeal and initial brief, and the 

appendix as the record on appeal. Upon review of the record and 

Appellant’s arguments, we affirm the trial court’s order, noting that the 

2014 change in sentencing law at issue has not been declared retroactive 

by the Legislature. 

In his “Motion for Resentencing on Retroactive Change in Punishment 

Statutes,” Appellant asked to be resentenced under a law enacted in 2014

for the drug trafficking offense he committed in 2006. The 2014 law 

changed the mandatory minimum for the amount of oxycodone that 

Appellant possessed from 15 years to 7 years. Ch. 2014-176, § 1, Laws of 

Fla. (creating section 893.135(1)(c)3.b., Florida Statutes). Appellant 

argued that the 2018 amendment of Article X, section 9 of the Florida 

Constitution required that he be resentenced under the 2014 law. 

Article X, section 9 of the Florida Constitution (referred to as the 
2

“Savings Clause”) previously provided: “Repeal or amendment of a criminal 

statute shall not affect prosecution or punishment for any crime previously 

committed.” (emphasis supplied). However, in 2018, pursuant to a 

proposal by the Florida Constitutional Revision Commission, the voters 

approved an amendment to the clause, so that it now reads: “Repeal of a 

criminal statute shall not affect prosecution for any crime committed 

before such repeal.” Art. X, § 9, Fla. Const. (2018). 

In light of this amendment to the Savings Clause, Appellant argues that

retroactive application of the 2014 law to his 2006 offense is required. He 

appears to be arguing that the 2018 amendment, which eliminated the 

prohibition on retroactive application of amended criminal statutes, 

actually mandates such retroactive application. This argument, however, 

has no merit. Retroactive application is neither prohibited nor mandatory; 

it is permissive and requires a declaration of statutory intent.

The 2014 change to the punishments for certain trafficking offenses 

expressly provided that the effective date of this new law would be July 1, 

2014. Ch. 2014-176, § 5, Laws of Fla. There is no indication in the 2014 

law that the Legislature either declared or intended this change in 

sentencing law to apply retroactively. 

“The effective date of the statute has meaning and represents the will 

of the legislature. A statute that provides an unambiguous effective date 

is clear and controlling evidence of legislative intent.” Hight v. State, 253 

So. 3d 1137, 1142 (Fla. 4th DCA 2018). See also ANTONIN SCALIA & BRYAN 

A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 261-62 (2012) 

(footnote omitted) (Declaring the “Presumption Against Retroactivity” 

canon that statutes “typically pronounce what the law becomes when the 

statutes take effect” is “basic to our rule of law,” and noting “a statute 

reducing the penalties for a crime will be presumed to apply only to acts 

occurring after the statute’s effective date, even though there is no 

constitutional difficulty in applying it to prior acts.”).

Affirmed.

LEVINE, C.J., and TAYLOR, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.