Kasischke v. State, SC07-128.

• Court: United States State Supreme Court of Florida
• Citation: 991 So.2d 803
• Docket Number: No. SC07-128.,SC07-128.
• Parties: Donald Dean KASISCHKE, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 10 July 2008

991 So.2d 803 Donald Dean KASISCHKE, Petitioner,
v.
STATE of Florida, Respondent. No. SC07-128. Supreme Court of Florida. July 10, 2008. Rehearing Denied September 19, 2008.

[991 So.2d 805]

Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Richard L. Polin, Assistant Attorney General, Bureau Chief, Linda S. Katz and Paulette R. Taylor, Assistant Attorneys General, Miami, FL, for Respondent.

CANTERO, J.

We review a statute that requires judges to impose conditions of probation on sexual offenders. At issue is whether the statute prohibits sexual offenders serving probation or community control from possessing any pornographic material at all or only such material relevant to the offender's deviant behavior. In the decision below, Kasischke v. State, 946 So.2d 1155, 1159 (Fla. 3d DCA 2006), the Third District Court of Appeal held that offenders cannot possess any such material. Its decision expressly and directly conflicts with the Second District Court of Appeal's decision in Taylor v. State, 821 So.2d 404, 405-06 (Fla. 2d DCA 2002), which held that a condition prohibiting the defendant from "viewing, owning, or possessing obscene, pornographic, or sexually explicit material," must relate to the defendant's "particular deviant behavior pattern." We have jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. Because, as the Third District acknowledged, the statute "is undeniably susceptible to multiple and irreconcilable interpretations," 946 So.2d at 1157-58, we apply the rule of lenity. We therefore quash the decision below and approve the Second District's decision in Taylor.

I. FACTS AND PROCEDURAL HISTORY

The facts on which the underlying convictions are based are explained in the district court's opinion. See Kasischke, 946 So.2d at 1156. For our purposes, suffice it to say that the Petitioner, Donald Kasischke, pled guilty to three counts each of lewd or lascivious battery and exhibition on a child under age sixteen. He was sentenced to 364 days in prison, followed by two years of community control and eight years of probation. Section 948.03(5)(a), Florida Statutes (1999), requires that courts impose several conditions on sexual offenders receiving probation or community control. For example, defendants are subject to a curfew; they cannot live within 1000 feet of certain places, such as schools, where children congregate; and they must successfully

991 So.2d 806

complete a sexual offender treatment program. Another condition that must be imposed—the one relevant here—is the following:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern.

§ 948.03(5)(a)(7), Fla. Stat. (1999).¹ The Petitioner's plea agreement included such a condition.² After he had been released from prison, and while he was serving his community control, a search of his home revealed allegedly "obscene, pornographic, or sexually stimulating" photographs, as well as a pornographic videotape. His community control was revoked and he was ordered incarcerated.

The parties do not dispute the pornographic nature of the videotape. They disagree, however, about whether the Petitioner's possession of these materials violated his community control. The State argues that his conditions forbid possession of any obscene or pornographic material, while the Petitioner argues that they only prohibit possession of such material relevant to his particular deviant behavior (in his case, paying a fifteen-year-old boy to allow him to perform oral sex on the boy and masturbating in the boy's presence).

On appeal, the Third District concluded that the statute was ambiguous. However, it analyzed the statute's legislative history, including a staff analysis explaining a 1997 amendment, and concluded that the Legislature intended to ban possession of all pornographic materials. Kasischke, 946 So.2d at 1159. In contrast, in a similar case, the Second District interpreted the same condition, albeit superficially, to prohibit only possession of materials relevant to the defendant's "particular deviant behavior pattern." Taylor, 821 So.2d at 405-06. We granted review to resolve the conflict. See Kasischke v. State, 954 So.2d 1156 (Fla.2007) (granting review).

II. ANALYSIS

The issue we consider is whether the statute prohibits possession of all pornographic materials, or only those "relevant to the offender's deviant behavior pattern." Although we quoted the statute above, because its language is central to our analysis, it bears repeating. It requires that any order imposing probation or community control include "a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern." § 948.03(5)(a)(7), Fla. Stat. (1999). The specific question is which part

991 So.2d 807

of the sentence is modified by the phrase "relevant to the offender's deviant behavior pattern"? The State argues that the phrase modifies "sexually stimulating visual or auditory material," which would mean that the statute prohibits possession of all obscene and pornographic material, as well as "sexually stimulating visual or auditory material ... relevant to the offender's deviant behavior pattern." The Petitioner, on the other hand, argues that the phrase modifies "obscene, pornographic, or sexually stimulating visual or auditory material," so that the statute prohibits possession only of such material that is relevant to his deviant behavior. The dissents take a third view (one not advanced by either party here),³ suggesting that "relevant to the offender's deviant behavior pattern" relates only to "telephone, electronic media, computer programs, or computer services." Lewis, J., dissenting op. at 817; Bell, J., dissenting op. at 829.

For the reasons explained below, we find section 948.03(5)(a)(7), Florida Statutes (1999), ambiguous. We therefore apply the rule of lenity and hold that the phrase "relevant to the offender's deviant behavior pattern" modifies each of the statutory prohibitions.

A. Plain Language

"The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review." Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1268, 167 L.Ed.2d 92 (2007). When construing a statute, we strive to effectuate the Legislature's intent. See, e.g., Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) ("We endeavor to construe statutes to effectuate the intent of the Legislature."). To determine that intent, we look first to the statute's plain language. Id. at 595. "[W]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Id. (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla.2005)).

We agree with the district court that this statute "is undeniably susceptible to multiple and irreconcilable interpretations." Kasischke, 946 So.2d at 1157-58. The plain language of the statute could be construed in at least four ways: (1) as prohibiting all obscene, pornographic, or sexually stimulating material, as well as any telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern, see Bell, J., dissenting op. at 829; (2) as clarifying that "telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern" are within the ban on "obscene, pornographic, or sexually stimulating" material, see Lewis, J., dissenting op. at 817; (3) as prohibiting only such material relevant to the offender's deviant behavior pattern; and (4) as prohibiting all obscene and pornographic material, but prohibiting sexually stimulating visual or auditory material only when relevant to the offender's deviant behavior pattern. Therefore, as did the district court, see 946 So.2d at 1158, we find the statute ambiguous. We cannot rely solely on its plain language to discover the legislative intent.

991 So.2d 808

Justice Lewis concludes that the plain language of the statute demonstrates that the Legislature intended the entire clause "including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern" as merely illustrating a category of materials within the ban on "any obscene, pornographic, or sexually stimulating material." Lewis, J., dissenting op. at 817. In other words, Justice Lewis argues that the Legislature intended to clarify that "Internet-based and other forms of electronic obscenity and pornography" were within the prohibition. Id. at 821. If this were the case, however, the Legislature could have ended the sentence after the phrase, "including telephone, electronic media, computer programs, or computer services." Under Justice Lewis's interpretation, these materials would be prohibited whether or not relevant to the offender's deviant behavior. But the Legislature did not end there; it added the phrase "that are relevant to the offender's deviant behavior pattern." This phrase must modify something. See, e.g., Martinez v. State, 981 So.2d 449, 452 (Fla. 2008) ("It is a basic rule of statutory construction that `the Legislature does not intend to enact useless provisions, and courts should avoid...