Barber v. State

• Decision Date: 06 August 2008
• Docket Number: No. 4D06-3518.,4D06-3518.
• Citation: 988 So.2d 1170
• Parties: Marvin A. BARBER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

988 So.2d 1170

Marvin A. BARBER, Appellant, v. STATE of Florida, Appellee.

No. 4D06-3518.

District Court of Appeal of Florida, Fourth District.

August 6, 2008.

Rehearing Denied September 12, 2008.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

TRAWICK, DARYL EVAN, Associate Judge.

The Appellant, Marvin Barber, has two convictions for sexual battery—one for an offense committed in February 1980, and the other for an offense committed in July 1990. Barber's 1990 conviction resulted in a fifteen-year prison sentence. Sometime between 1996 and 1998, Barber was released from prison and placed on conditional release by the Florida Parole Commission. Barber continued in this status until 2000, when he was returned to prison after the Parole Commission determined that he had violated the terms of his conditional release by testing positive for drugs and failing to abide by his curfew. In January 2006, the State filed a petition seeking to have Barber civilly committed under the Jimmy Ryce Act. Ultimately, Barber was found to be a sexually violent predator and committed to the custody of the Department of Children and Family Services. In this appeal, Barber argues that the trial court lacked the authority to order such commitment because he was neither in custody on the effective date of the act, January 1, 1999, or sentenced to "total confinement" after that date. We reject Barber's argument and affirm the order appealed.

The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predator's Treatment and Care Act (the "Act") became effective on January 1, 1999. See Ch. 98-64, § 24, at 455, Laws of Fla.; §§ 916.31-.49, Fla. Stat. (Supp.1998). The Act has since been renumbered and now appears in Florida Statutes Chapter 394, Part V, "Involuntary Civil Commitment of Sexually Violent Predators" (2006). At all times relevant to the instant appeal, section 394.925, the so-called "jurisdictional" section of the Act, provided as follows:

This part [part V or chapter 394 governing the involuntary civil commitment of sexually violent predators] applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in § 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

§ 394.925, Fla. Stat. (2008).

There are thus two classes of persons subject to involuntary commitment as provided for in the Act: (1) those who have been convicted of a sexually violent offense and who were "in custody" on January 1, 1999 (Clause One) and (2) those who have been convicted of a sexually violent offense and who are "sentenced to total confinement [¹] in the future [post January 1, 1999]" (Clause Two). See § 394.925, Fla. Stat.; Ward v. State, 986 So.2d 479, 481 (Fla.2008) (answering certified question in the affirmative).

Barber contends that he does not fall within either class of persons defined by section 394.925. Barber believes that he does not fall within Clause One because on January 1, 1999, he was on conditional release and not in a "physically secure facility." He also maintains that he does not fall within Clause Two because the revocation of his conditional release did not constitute a "sentence to total confinement in the future" within the meaning of the Act.

In determining whether the facts before us fall within the ambit of Clause One, we must answer this question: Are the terms "in custody" and "total confinement," as used in separate clauses of section 394.925, synonymous in the context of a person on conditional release? Barber, and the dissent, concludes that they are, citing State v. Siddal, 772 So.2d 555 (Fla.3d DCA 2000), and Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003), disagreed with on other grounds in Larimore v. State, 917 So.2d 354 (Fla. 1st DCA 2005), review granted in 935 So.2d 1220 (Fla. 2006). In reaching this conclusion, these cases rely on a "plain and ordinary meaning" analysis of the term "in custody." While such an analysis is normally warranted, the use of different terms in different clauses of the same statutory provision—"in custody" in Clause One, and "total confinement" in Clause Two—creates an inherent ambiguity requiring the court to look beyond the plain and ordinary meaning of the term "in custody." Further, even if this language could be construed to be unambiguous, the plain meaning analysis should not be used when to do so would clearly defeat the intent of the legislature. "`It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute.'" Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 6 (Fla.2004) (quoting State v. Webb, 398 So.2d 820, 824 (Fla.1981)) (emphasis added).² None of the above-cited authorities dispel the concern that legislative intent would be preempted by the interpretation Barber and the dissent urge we afford the term "in custody."

In considering the legislature's use of the term "in custody" in Clause One and "total confinement" in Clause Two, we should be mindful of the maxim of statutory interpretation that where certain language is used in one part of a statute and different language is used in another, it will be assumed that different meanings were intended. Norman J. Singer, Statutes & Statutory Construction § 46:06, at 194 (6th ed. 2000).³ Additionally, absent evidence of a contrary conclusion, legal terms in a statute will be presumed to have been used in their legal sense. Id. § 47:30 at 361-62.

A careful reading of the cases relied on by Barber and the dissent reveal no discussion or analysis of the significance of the legislature's use of the terms "in custody" in Clause One and "total confinement" in Clause Two. These cases instead rely on the "plain and ordinary meaning" of the term "in custody," and, by the use of a dictionary, they conclude that "in custody" and "total confinement" are synonymous. See Siddal, 772 So.2d at 556; Gordon, 839 So.2d at 718. Such a conclusion dismisses without discussion the ambiguity created by the use of these terms in difference clauses of the same provision. It also ignores the presumption that the legislature intended different meanings by its use of different terminology in the two clauses of section 394.925. The use of the undefined term "in custody" by the legislature in this context cloaks it with legal significance that cannot be ignored. As the Gordon court stated, "[i]n the legal arena, the term `custody' is a term of art...." Id. at 718.⁴ Thus, we cannot casually dismiss the possibility that the legislature intended that this term encompass more than its colloquial meaning.⁵

In Echols v. State, 201 So.2d 89 (Fla. 2d DCA 1967), the Second District Court of Appeal discussed the legal status of a paroled, or conditionally released, prisoner. Our sister court found that while such a prisoner was not in actual custody, the prisoner remained in "legal" or "constructive custody." Id. at 93-94 (citing 67 C.J.S. Pardons § 22(b), p. 610). This concept, in the context of persons on parole, is well established in our jurisprudence. See United States v. Presley, 487 F.3d 1346, 1349 (11th Cir.), cert. denied, ___ U.S. ___ 128 S.Ct. 414, 169 L.Ed.2d 290 (2007); see also Sherman v. United States Parole Comm'n, 502 F.3d 869, 884 (9th Cir.2007); United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997); Howse v. Tenn. Dep't of Correction, No. M2004-01497-COA-R3CV, 2007 WL 2198188 (Tenn.Ct.App. July 23, 2007); Jenner v. Ortiz, 155 P.3d 563, 565 (Colo.Ct.App. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2976, 168 L.Ed.2d 708 (2007). Thus, the term "in custody" can be interpreted to mean both actual and constructive custody. Such an interpretation would comport with the assumption that the legislature intended different meanings in using different terminology in Clause One and Clause Two, as well as the presumption that the legislature understood the full meaning and implication of the language it used. See Ward v. State, 936 So.2d 1143, 1146 (Fla. 3d DCA 2006), aff'd, 986 So.2d 479 (Fla.2008).

How then can it be presumed that the legislature intended the term "in custody" to include "constructive" custody? A contrary conclusion would create a serious anomaly within the Jimmy Ryce Act. If a person was on probation on the effective date of the Act, and that person was later found to have violated his probation, resulting in a sentence of "total confinement" by a court, that individual may be subject to civil commitment under Clause Two. However, a person who was on conditional release on the effective date of the Act, as Barber was here, and was later found to have violated his release conditions, would not likewise be subject to commitment under the Act. Since the offender would already have been sentenced to a prison term prior to the effective date of the Act, a decision by the Parole Commission to return the offender to custody to complete a sentence may not constitute a sentence of "total confinement in the future." Thus, persons conditionally released from prison terms and who later violate their release conditions would be treated in a more lenient manner under the Act than persons who violate conditions of their probationary sentences. Yet, a person originally sentenced to probation can, in most circumstances, be presumed to be a less serious offender than a person originally sentenced to prison and on conditional release. Absent a departure sentence, only less serious offenders would be eligible for probation under Florida's Sentencing Guidelines, Florida Statutes section 921.001, et. seq. See also Duncan v. Moore, 754 So.2d...