Espindola v. State

• Decision Date: 22 October 2003
• Docket Number: No. 3D02-1839.,3D02-1839.
• Citation: 855 So.2d 1281
• Parties: Ferman Carlos ESPINDOLA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

855 So.2d 1281

Ferman Carlos ESPINDOLA, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-1839.

District Court of Appeal of Florida, Third District.

October 22, 2003.

Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, for appellant.

Charlie Crist, Attorney General and Richard L. Polin and Fredericka Sands, Assistant Attorneys General, for appellee.

Before COPE, GREEN, and FLETCHER, JJ.

ON MOTION FOR REHEARING AND/OR CERTIFIED QUESTION

PER CURIAM.

We deny the motion for rehearing,¹ but in light of the recent Supreme Court decisions of Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Conn. Dep't of Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); we withdraw our prior opinion filed on January 15, 2003, and substitute the following in its place.

This is an appeal from a final order declaring the defendant a "sexual predator," in accordance with section 775.21, Florida Statutes (1999), the Florida Sexual Predator Act ("FSPA"). Defendant, an individual who pled guilty to an offense which, pursuant to the FSPA requires that he be designated a "sexual predator," claims that the statute is violative of procedural due process and therefore unconstitutional. As further explained below, we find FSPA to be unconstitutional because it fails to provide minimal procedural due process. Accordingly, we reverse.

I. Facts

The facts of this case are undisputed. The defendant was at a club on South Beach with the co-defendant (who is not a party to this appeal) and the victim. The co-defendant brought the victim a cocktail, of which she drank a little and the defendant finished. A couple of minutes after drinking the cocktail the defendant fell down unconscious. Soon after, the victim also became dizzy and disoriented. All three left the club, and the co-defendant took them to an unknown hotel and checked into a room. The victim then also lost consciousness. When she regained consciousness, the defendant and co-defendant were allegedly having sexual intercourse with her.

The state charged both men with sexual battery of a physically incapacitated victim by multiple perpetrators. The defendant pled guilty in exchange for a withhold of adjudication and one year community control followed by four years of probation. He has also agreed to assist in the prosecution's case against the co-defendant, which is still pending trial.

Although she remains afraid of the co-defendant, the victim has testified that she does not fear the defendant, and even considers him a friend. Based on this testimony, the state did not seek the standard "stay-away" order in this case.

Since pleading guilty to multiple perpetrator sexual battery would automatically result in the defendant being declared a "sexual predator" under the Act, the defendant filed a motion to declare the Act unconstitutional as violative of procedural due process. The trial court denied the motion before completing the plea and later entered an order finding the defendant to be a sexual predator "subject to community and public notification." The trial court denied a motion to quash that order on the same constitutional grounds, and this appeal ensued.

II. Structure of the Act

Like every other state in the nation, Florida has enacted its version of "Megan's Law,"² entitled The Florida Sexual Predator's Act. The Florida legislature has specifically found that:

(a) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.

(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

1. Incarcerating sexual predators and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space.

2. Providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, as described in ss. 947.1405(7) and 948.03(5). The sexual predator is subject to specified terms and conditions implemented at sentencing or at the time of release from incarceration, with a requirement that those who are financially able must pay all or part of the costs of supervision.

3. Requiring the registration of sexual predators, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public.

4. Providing for community and public notification concerning the presence of sexual predators.

5. Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

* * *

(e) It is the intent of the Legislature to address the problem of sexual predators by:

1. Requiring sexual predators supervised in the community to have special conditions of supervision and to be supervised by probation officers with low caseloads;

2. Requiring sexual predators to register with the Florida Department of Law Enforcement, ...; and

3. Requiring community and public notification of the presence of a sexual predator,....

§ 775.21(3)(a)(b) & (e), Fla. Stat. (1999).

Under FSPA, the sole determination to be made by the trial court, before designating a person a "sexual predator," is whether that person had the prerequisite criminal conviction. See § 775.21(5)(a)(1), Fla. Stat.³ See also State v. Curtin, 764 So.2d 645, 647 (Fla. 1st DCA 2000)

(trial court required to enter finding of sexual predator status where defendant was convicted of crime enumerated in statute). The act of delineating an offender as a sexual predator is mandatory, and the trial court has no discretion. See Kelly v. State, 795 So.2d 135, 137 (Fla. 5th DCA 2001) (stating that "based on the unambiguous language of [FSPA] and the clearly stated legislative intent, ... the Act is mandatory and affords no discretion to the trial judge to designate an individual a sexual predator if the statutory criteria are established.").⁴ Indeed, the granting of the state's motion to have a defendant declared a sexual predator has been deemed merely "perfunctory" by the courts. See e.g., Thomas v. State, 716 So.2d 789, 790 (Fla. 4th DCA 1998).

Once an offender has been designated a "sexual predator," the registration and public notification requirements of FSPA are automatically triggered. See § 775.21(6), Fla. Stat. An offender must, within forty-eight (48) hours, register with the Department of Law Enforcement ("FDLE") or, alternatively, the sheriff's office, and with the Department of Highway Safety and Motor Vehicles ("DMV").⁵ See § 775.21(6)(a), (e), & (f), Fla. Stat.⁶ Upon registration an offender must provide their name, age, race, sex, date of birth, height, weight, hair and eye color, a photograph, address of legal residence, address of any current temporary residence, "a brief description of the crime or crimes committed by the offender," and genetic material.

FSPA authorizes the DMV to give the offender's photograph to FDLE for purposes of public notification,⁷ and also requires FDLE to take the offender's registration information and photograph and place it on the internet for worldwide distribution. See § 775.21(7)(c), Fla. Stat. County law enforcement also has a statutory duty to provide this same information to the public through other means. See § 775.32(7)(a), Fla. Stat.⁸ Broad immunity is afforded anyone acting in good faith in the implementation of FSPA's notification requirements. See § 775.21(9), Fla. Stat.⁹

An offender must appear in person at a DMV office to notify it of any change of residence, which is forwarded to FDLE and posted on its website. See § 775.21(6)(g), Fla. Stat. If an offender plans to move out-of-state, he or she must inform DMV at least forty-eight (48) hours before leaving. See § 775.21(6), Fla. Stat. All of this registration information must be updated by the offender for the "duration of his or her life."¹⁰ See § 775.21(6)(l), Fla. Stat. Failure to comply with these registration requirements is a third-degree felony. See § 775.21(10)(a), Fla. Stat.

Finally, FSPA also automatically prohibits specific offenders, from working "at any business, school, day care center, park, playground, or other place where children regularly congregate ...." § 775.21(10)(b), Fla. Stat.¹¹

III. Procedural Due Process

The defendant argues that the automatic registration and notification requirements of FSPA are violative of his protected right to procedural due process, guaranteed to him by the Fourteenth Amendment to the United States Constitution.¹² Procedural due process questions are examined in two steps:

the first asks whether there exists a liberty or property interest which has been interfered with by the State, ... the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient....

Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted).

The defendant claims that FSPA infringes on his liberty interest in reputation. See, e.g., Wis. v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)

(stating that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential."). However, the law is clear that to trigger procedural due...