Hudson v. State

• Decision Date: 02 August 2002
• Docket Number: No. 1D00-2948.,1D00-2948.
• Citation: 825 So.2d 460
• Parties: Richard HUDSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

825 So.2d 460

Richard HUDSON, Appellant, v. STATE of Florida, Appellee.

No. 1D00-2948.

District Court of Appeal of Florida, First District.

August 2, 2002.

Nancy A. Daniels, Public Defender; Michael J. Minerva, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, J.

Appellant seeks review of a final order, entered following a non-jury trial, holding that he qualified as a "sexually violent predator" as that term is defined in section 394.912(10), Florida Statutes (2000), and committing him to the custody of the Department of Children and Family Services for control, care and treatment in a secure facility pursuant to section 394.917(2), Florida Statutes (2000). He contends that part V of chapter 394, Florida Statutes (2000) (commonly referred to as the "Jimmy Ryce Act"), on its face deprives him of his right to substantive due process of law guaranteed by the federal and state constitutions, and violates the equal protection, ex post facto and double jeopardy clauses of the federal and state constitutions. He also contends that the Act is unconstitutional as applied to him because the evidence presented at the trial which resulted in his being designated a "sexually violent predator" and committed did not satisfy requirements established by the United States Supreme Court as constitutional conditions precedent to such action. We reject appellant's challenges to the constitutionality of the Act. However, because the evidence presented at appellant's trial was not legally sufficient to permit commitment according to recent United States Supreme Court precedent, we reverse and remand for a new trial.

I.

A.

The Jimmy Ryce Act was passed by the legislature in 1998. Ch. 98-64, Laws of Fla. (It has since been codified as part V of chapter 394, Florida Statutes.) In its statement of "findings and intent," the legislature said that the Act was aimed at "a small but extremely dangerous number of sexually violent predators ... who do not have a mental disease or defect that renders them appropriate for involuntary treatment under the Baker Act (§§ 394.451-394.4789, Fla.Stat.)." § 394.910, Fla. Stat. (2000). Given the "high" "likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence," the legislature's intent was "to create a civil commitment procedure for the long-term care and treatment of sexually violent predators." Id.

The Act defines a "sexually violent predator" as "any person who: (a) [h]as been convicted of a sexually violent offense; and (b) [s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for longterm control, care, and treatment." Id. § 394.912(10). A "sexually violent offense" is one of those listed in section 394.912(9), including sexual battery and attempted sexual battery. A "mental abnormality" is "a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses." Id. § 394.912(5). The term "personality disorder" is not defined.

The Act requires that the agency having jurisdiction over a person who has been convicted of a sexually violent offense provide certain information regarding the person to a multidisciplinary team and the state attorney for the circuit where the person was last convicted of a sexually violent offense (or the circuit where the person was last convicted of any offense if convicted of a sexually violent offense outside Florida) at least 365 days (90 days if the person is an adjudicated delinquent) before the person's release from total confinement. Id. § 394.913(1)(a). Within 90 days after receiving the information, the multidisciplinary team must provide to the state attorney "a written assessment as to whether the person meets the definition of a sexually violent predator and a written recommendation." Id. § 394.913(3)(e). "Following receipt of the written assessment and recommendation ..., the state attorney ... may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation." Id. § 394.914.

If the state attorney elects to file such a petition, the circuit court must "determine whether probable cause exists to believe that the person ... is a sexually violent predator." Id. § 394.915(1). If the court concludes that probable cause does exist, "the person must be held in custody in a secure facility without opportunity for pretrial release or release during the trial proceedings," notwithstanding the fact that the criminal sentence has been served. Id. § 394.915(5). A trial must be held within 30 days of the probable cause determination. Id. § 394.916(1). If either the person or the state attorney so elects, the trial must be before a six-person jury; otherwise, the trial is to the court, without a jury. Id. § 394.916(5). The person is entitled to the assistance of counsel, including appointed counsel if indigent. Id. § 394.916(3). The trial is considered civil in nature, and the Florida Rules of Civil Procedure and Evidence Code are generally applicable. Id. § 394.9155. The state must demonstrate by clear and convincing evidence that the person qualifies as a sexually violent predator. Id. § 394.917(1). Upon a determination that the person qualifies as a sexually violent predator,

upon the expiration of the incarcerative portion of all criminal sentences ..., the person [must] be committed to the custody of the Department of Children and Family Services for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large.

Id. § 394.917(2). The person must "be kept in a secure facility segregated from patients who are not committed" pursuant to the Act. Id.

Once committed, the person must "have an examination of his or her mental condition" at least once each year. Id. § 394.918(1). The person may file in the circuit court a petition seeking release at any time after commitment. Id. § 394.920. If the Department of Children and Family Services has concluded "that the person is not likely to commit acts of sexual violence if discharged," the court must hold a trial. Id. § 394.919(1). Otherwise, the court must hold a hearing to determine whether probable cause exists "to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged." Id. § 394.918(3). If the court concludes that probable cause does exist, the court must hold a trial. At the trial, "the person is entitled ... to the benefit of all constitutional protections afforded ... at the initial trial, except for the right to a jury." Id. § 394.918(4). "[T]he state bears the burden of proving, by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence." Id.

B.

A non-jury trial was held on June 29 and 30, 2000. At that trial, it was established that appellant had been convicted of sexual battery in Levy County, and of an attempted sexual act with a child under age 13 by a person aged 12 years or older and at least 4 years older than the child in North Carolina. Two clinical psychologists testified for the state. The first said that appellant "had a personality disorder not otherwise specified, which mean[t] ... that he had a history of both antisocial and borderline personality traits, that ... place[d] him at significant risk for reoffending." He testified, further, that, "based upon a reasonable degree of psychological certainty," appellant was "likely to commit further acts of sexual violence if he [wa]s not incarcerated in a treatment program." The second psychologist, who was a member of the multidisciplinary team charged with evaluating appellant, testified that appellant suffered from an antisocial personality disorder based upon the criteria specified in the Diagnostic and Statistical Manual of Mental Disorders IV. He, too, opined that appellant was "likely to reoffend in a sexual manner" if "not committed to a secure facility for longterm treatment," and that the risk of such conduct was "high." Appellant offered no expert testimony to contradict that of the two psychologists offered by the state.

The trial court subsequently found by clear and convincing evidence that appellant had been convicted in Levy County of sexual battery; that he "suffer[ed] from anti-social personality disorder with other significant features"; that he was "likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment"; and that, therefore, he met the Act's definition of a "sexually violent predator." Accordingly, it ordered that appellant be committed to the Department of Children and Family Services for "long-term control, care, and treatment" pursuant to the Act. This appeal follows.

II.

Appellant argues, first, that, on its face, the Act deprives him of his right to substantive due process of law guaranteed by the federal (amend.XIV, § 1) and state (art. I, § 9) constitutions because (1) it requires proof by only clear and convincing evidence, rather than to the exclusion of all reasonable doubt; (2) it prohibits consideration of less restrictive alternatives to involuntary commitment; (3) it permits indefinite preventive detention without requiring proof of "mental illness" and imminent danger; and (4) the definition of "sexually violent predator" is vague and ambiguous. "So-called `substantive due process' prevents the government from engaging in conduct that ...