STATE of Florida, Petitioner, v. David KLAYMAN, Respondent, 835 So. 2d 248

SHAW, J. We have for review Klayman v. State, 765 So.2d 784 (Fla. 4th DCA 2000), wherein the district court certified the following question: Should the supreme court’s decision in Hayes v. State, [750 So.2d 1 (Fla.1999)] be retroactively applied? Klayman, 765 So.2d at 785. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. I. FACTS The relevant facts are set forth in the district court opinion, which provides in part: David Klayman appeals the trial court’s denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

He contends that the court erred in failing to apply the supreme court’s recent decision of Hayes v. State, 750 So.2d 1 (Fla.1999), to his conviction of trafficking in hydrocodone.... In Hayes, the supreme court quashed this court’s decision in the underlying case of State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), quashed, 750 So.2d 1 (Fla.1999), and held that the drug trafficking statute (section 893.135(1)(c)1, Florida Statutes (Supp.1996)) did not apply to possession of hydrocodone in amounts under fifteen milligrams per dosage unit. .

Appellant argues that the supreme court’s decision in Hayes should be given retroactive application because the effect of the decision has constitutional ramifications for those persons whose sentence was rendered or upheld pursuant to State v. Baxley, 684 So.2d 831, 832-33 (Fla. 5th DCA 1996), and our decision in State v. Hayes. Klayman, 765 So.2d at 784-85. The district court agreed with Klayman, reversed the trial court’s ruling, and remanded for an evidentiary hearing to determine the continued validity of Klayman’s sentence in light of Hayes.

The district court certified the above question and the State petitioned for review before this Court. II. HAYES V. STATE The Court in Hayes v. State, 750 So.2d 1 (Fla.1999), was confronted with the following question: whether a person who fraudulently procured forty tablets of Lorcet, a prescription pain relief medication containing a mixture of acetaminophen and hydro-codone, can be convicted of trafficking if the hydrocodone in the mixture was not a

Schedule I or II drug.

The trafficking statute prohibited the purchase of four grams or more of “any morphine, opium, oxycodone, hydrocodone, hydromorphone ... as described in [Schedule I] or [Schedule II]” or four grams or more of “any mixture containing any such substance.” Prior to Hayes, Florida district courts were in disagreement as to the meaning of the word “such” in the phrase “any mixture containing any such substance.” The Fourth and Fifth District Courts of Appeal had held that “such” referred to any of the drugs enumerated in the statute (i.e., “morphine, opium, oxycodone, hydroco-done, hydromorphone”), regardless of their chemical forms.

The First and Second District Courts of Appeal, on the other hand, had held that “such” referred to the enumerated drugs but only when those drugs are in the chemical forms described in Schedules I and II. This Court in Hayes analyzed the language in the trafficking statute, endorsed the view of the First and Second District Courts of Appeal, and held that the word “such” referred to the enumerated drugs only in the chemical forms described in Schedules I and II. The Court then determined that, under the applicable drug classification statutes, hydrocodone may be either a

Schedule II or III drug, depending on the dosage unit, and that the hydroco-done in the mixture possessed by Hayes was a

Schedule III drug. Because the mixture possessed by Hayes did not contain a

Schedule I or II drug, she could not be convicted of trafficking. The basic holding of Hayes is that the trafficking statute, since the time of enactment, was intended to apply only to

Schedule I and II drugs or to mixtures containing

Schedule I or II drugs. The question posed in the present case is whether that holding should be applied to final cases wherein the lower courts construed the statute differently and imposed trafficking convictions based on mixtures that did not contain a

Schedule I or II drug. This issue is a pure question of law, subject to de novo review. III. CLARIFICATIONS IN THE LAW The United States Supreme Court in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), held that whereas a change in the law may be analyzed in terms of retroactivity, a clarification in the law does not implicate the issue of retroactivity. Petitioner Fiore was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit, even though the Commonwealth conceded that he in fact possessed a permit.

The state supreme court declined review and the conviction became final. Subsequently, the state supreme court reviewed the case of Fiore’s codefendant, Scarpone, and held, on identical facts, that the statute had not been violated. The United States Supreme Court granted certiorari in Fiore’s case and, after soliciting a response from the Pennsylvania Supreme Court, ruled as follows: The Pennsylvania Supreme Court’s reply specifies that the

interpretation of [the statute] 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 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. This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process.

We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. In this case, failure to possess a pennit is a basic element of the crime of which Fiore was convicted. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, necessarily concedes that it did not prove he failed to possess one.

The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands. Fiore, 531 U.S. at 228-29, 121 S.Ct. 712 (citations omitted). It thus is clear under Fiore that, if a decision of a state’s highest court is a clarification in the law, due process considerations dictate that the decision be applied in all cases, whether pending or final, that were decided under the same version (i.e., the clarified version) of the applicable law. Otherwise, courts may be imposing criminal sanctions for conduct that was not proscribed by the state legislature.

Although Florida courts have not previously recognized the Fiore distinction between a “clarification” and “change,” we conclude that this distinction is beneficial to our analysis of Florida law. Previously, this Court analyzed such cases strictly under Witt v. State, 387 So.2d 922 (Fla.1980), and used the term “change” broadly to include what in fact were both clarifications and true changes. As explained in Fiore, however, a simple clarification in the law does not present an issue of retro-activity and thus does not lend itself to a Witt analysis.

Whereas Witt remains applicable to “changes” in the law, Fiore is applicable to “clarifications” in the law. IV. THE PRESENT CASE In an effort to determine whether Hayes should be applied retroactively, we must ask, is Hayes a “clarification” or “change” in the law? A clarification is a decision of this Court that says what the law has been since the time of enactment. To determine whether a decision clarifies a statute, we first look to the decision itself to discern its intent. If the decision is silent or ambiguous on this point, we then look to the underlying statute to discern its intent.

Where the Legislature cedes no discretion to the courts either directly or indirectly but instead employs definitive language that ordinarily requires no judicial construction, the Legislature intends that the statute be applied as enacted. A decision by this Court confirming the original intent is a clarification of extant law. Hayes is such a clarification, because the Legislature, in formulating the trafficking statute, ceded no discretion to the courts either directly or indirectly with regard to the types and quantities of substances proscribed by the statute.

Rather, the Legislature defined those properties with specificity at the time of enactment: (c)l. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydro-morphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(l)(b) [i.e.,

Schedule I] or (2)(a) [i.e.,

Schedule II], or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs.” § 893.135(l)(c)l, Fla. Stat. (Supp.1996). Each proscribed substance is identified in the statute and then defined in detail in Schedules I and II, which contain exhaustive technical descriptions of illegal drugs.

Also, the proscribed quantities are clearly denoted in the trafficking statute itself: “4 grams or more” of any of the enumerated substances, or “4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture.” The Legislature thus intended at the time of enactment for the courts to apply the trafficking statute strictly as written with regard to the types and quantities of proscribed substances. The decision in Hayes is similar to the following cases cited above as clarifications in the law under Fiore:

(1) State v. Iacovone, 660 So.2d 1371 (Fla.1995) (holding that enhanced penalties for attempted second- and third-degree murder of a law enforcement officer were not authorized by statute);

(2) Hale v. State, 630 So.2d 521 (Fla.1993) (holding that consecutive habitual offender sentences for crimes arising from a single criminal episode were not authorized by statute); and

(3) Palmer v. State, 438 So.2d 1 (Fla.1983) (holding that consecutive mandatory minimum sentences for use of a firearm in crimes arising from a single criminal episode were not authorized by statute). Supra note 8. In the above cases, the Legislature used language that was intended to be clear on its face. The problem in those cases arose when lower courts construed the statutory language in a manner that was contrary to legislative intent.

The key consideration is that, in construing the statutes contrary to legislative intent, the courts imposed criminal sanctions without statutory authority■ — i.e., they imposed criminal sanctions where none were intended. The rulings thus violated the Due Process Clause and all defendants convicted or sentenced without statutory authority were entitled to relief. V. CONCLUSION Our decision in Hayes v. State, 750 So.2d 1 (Fla.1999), is a clarification of extant law and, pursuant to the United States Supreme Court decision in Fiore v.

White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), must be applied to final cases. Under

section 893.135(1)(c)1, trafficking in a

Schedule III drug or mixture thereof was never intended by the Legislature to be a crime. The district court below analyzed our decision in Hayes in terms of its impact on the validity of criminal sentences in the various judicial districts, and the court remanded “for an evidentiary hearing to determine the validity of [Klay-man’s] sentence pursuant to Hayes v. State, and for resentencing if appropriate.” This was imprecise. Our decision in Hayes addressed the validity of a trafficking conviction, not a trafficking sentence. On remand, the trial court should conduct an evidentiary hearing to determine whether the “mixture” possessed by Klay-man contained a

Schedule I or II drug; if not, his trafficking conviction must be reversed and sentence vacated. We answer the certified question and approve Klayman v. State, 765 So.2d 784 (Fla. 4th DCA 2000), as explained herein. It is so ordered. ANSTEAD, C.J., and LEWIS and QUINCE, JJ., concur. WELLS, J., dissents with an opinion, in which HARDING, Senior Justice, concurs. PARIENTE, J., recused. . See § 893.135(l)(c)l, Fla. Stat. (Supp.1996). The statute was enacted in 1979. See ch. 79-1, § 1, at 9, Laws of Fla. It was amended in 1995 to include hydrocodone and several other drugs.

See ch. 95-415, § 5, at 3417, Laws of Fla. . See Hayes, 750 So.2d at 2. . See id. at 2-3. . In the wake of Hayes, the Legislature in 2000 amended

Schedule III to delete reference to hydrocodone, thus making four grams or more of hydrocodone, or four grams or more of any mixture containing hydrocodone, a

Schedule II drug embraced by the trafficking statute, regardless of the dosage unit. See § 893.03(3), Fla. Stat. (2000). In 2001, the Legislature then reversed itself and reinstated certain quantities of hydrocodone as a

Schedule III drug. See ch.2001-55, § 1, at 357, Laws of Fla. . See State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001) ("If the ruling consists of a pure question of law, the ruling is subject to de novo review.”). . The Commonwealth argued that even though Fiore possessed a valid permit he nonetheless had deviated so dramatically from the permit's terms that he had violated the statute. See Fiore, 531 U.S. at 227, 121 S.Ct. 712. . This Court in Witt v.

State, 387 So.2d 922 (Fla.1980), divided "changes” in the decisional law into two groups: "jurisprudential upheavals” and "evolutionary refinements” in the law. Jurisprudential upheavals are applied retroactively; evolutionary refinements in the law are not applied retroactively. . For instance, although this Court held that the following decisions warranted retroactive application under Witt, the decisions when viewed in light of Fiore appear to be routine statutory "clarification" cases, not "major constitutional changes of law” as required by Witt:

(1) State v. Iacovone, 660 So.2d 1371 (Fla.1995) (holding that enhanced penalties for attempted second- and third-degree murder of a law enforcement officer were not authorized by statute);

(2) Hale v. State, 630 So.2d 521 (Fla.1993) (holding that consecutive habitual offender sentences for crimes arising from a single criminal episode were not authorized by statute); and

(3) Palmer v. State, 438 So.2d 1 (Fla.1983) (holding that consecutive mandatory minimum sentences for use of a firearm in crimes arising from a single criminal episode were not authorized by statute). See State v. Stevens, 714 So.2d 347 (Fla.1998) (applying Iacovone retroactively); State v. Callaway, 658 So.2d 983 (Fla.1995) (applying Hale retroactively); Bass v. State, 530 So.2d 282 (Fla.1988) (applying Palmer retroactively). . For example, the Legislature directly ceded to the courts the authority to formulate grounds for departing from the sentencing guidelines. See § 921.001(6), Fla.

Stat. (2001) ("A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence....”). . The Legislature may indirectly cede discretion to the courts by employing language that commonly requires judicial construction. Examples of such language include "careful and prudent,” "reasonable,” and "probable cause.” See, e.g., § 316.1925, Fla.

Stat. (2001) ("Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner ....”) (emphasis added); § 856.015(2), Fla. Stat. (2001) ("No adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed ... by a minor ... and where the adult fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.”) (emphasis added); § 933.04, Fla.

Stat. (2001) ("[N]o search warrant shall be issued except upon probable cause (emphasis added). .As noted above, the trafficking statute was enacted in 1979 and was amended in 1995 to include hydrocodone and other drugs. See supra note 1. . Florida courts have held that imposition of criminal sanctions without statutory authority is fundamental error. See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla.1982) ("We hold that one may never be convicted of a nonexistent crime....”); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr.

Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist.”); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant.... ”); Ward v. State, 446 So.2d 267, 267 (Fla. 2d DCA 1984) ("Ward argues that attempted uttering is not an offense under Florida law. He is correct.

Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal.”). . Postconviction claims for relief under Hayes must be filed within two years of the date mandate issues in the present case. Cf. Dixon v.

State, 730 So.2d 265, 268-69 (Fla.1999) ("In view of the limited number of opinions that are given retroactive effect and the uncertainty that exists over whether a particular decision will be accorded retroactive effect, we consider it reasonable to calculate the two-year time period for eligible defendants to file their claims from the time our decision announcing retroactivity becomes final.”); see also id. at 267 n. 3 ("An opinion of this Court becomes final upon issuance of the mandate.”).