Kasischke v. State
| Decision Date | 20 December 2006 |
| Docket Number | No. 3D04-2149.,3D04-2149. |
| Citation | 946 So.2d 1155 |
| Parties | Donald KASISCHKE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
Charles J. Crist, Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
Before COPE, C.J., and FLETCHER, and CORTIÑAS, JJ.
ON MOTION FOR REHEARING
Defendant, Donald Kasischke, appeals from an order revoking his community control for violating a condition of community control under section 948.03(5)(a)(7), Florida Statutes (1999). We affirm.
We review the trial court's1 factual findings concerning a defendant's violation of community control for abuse of discretion. See Arias v. State, 751 So.2d 184, 187 (Fla. 3d DCA 2000). In doing so, we must determine "whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner." State v. Carter, 835 So.2d 259, 262 (Fla.2002). However, because we are also reviewing the interpretation of a statute, this aspect of our review is purely a legal matter and is subject to a de novo standard of review. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (citations omitted).
This case involves a community control violation. Thus, we must consider the underlying crime for which the defendant was convicted as well as the nature of his alleged violation. The defendant, who has a Ph.D. degree, was fifty-four years old at the time of the underlying offense. He was convicted of three counts of lewd and lascivious assault on a child under sixteen years of age. Specifically, the defendant solicited a fifteen year-old boy and offered him forty dollars so that he could perform oral sex on the boy. The defendant took the boy to a park where, behind the bushes, he unzipped the boy's pants and performed oral sex on the victim until the boy ejaculated in the defendant's mouth. Additionally, the defendant masturbated in the boy's presence. Based on the defendant's guilty plea, he was sentenced to 364 days in jail followed by two years of community control and eight years of probation. Part of his plea agreement included the following standard condition for certain sex offenders on community control:
The Defendant is prohibited from viewing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory material[s], including telephone, electronic media, computer programs or computer services that are relevant to the offender's deviant behavior pattern, unless otherwise indicated in the offender's treatment plan.
In addition, the defendant was advised by his community control officer that he could not view, own, or possess any pornographic material while on community control.
The facts giving rise to the defendant's alleged community control violation are as follows. While the defendant was under community control, officers executed a search of his home and found several photographs of nude young males and of males performing various sexual acts. Also recovered was a videotape in a kitchen drawer that was kept apart from other videotapes that the defendant kept near his television. The parties do not dispute that the videotape shows pornographic and obscene images. Among other things, the videotape depicts a young-looking male engaging in oral and anal sex with other males. However, the parties disagree on whether the possession of such a videotape constituted a violation of the defendant's community control conditions.
The defendant's community control conditions are based on the legislative requirements in section 948.03(5)(a), Florida Statutes (1999).2 Section 948.03(5)(a) requires courts to impose upon all probationers and community controllees, whose sex offense was committed on or after October 1, 1995, various general conditions to their probation or community control. For example, sex offenders whose victim was a minor are prohibited from working at any school, park, playground, or other place where children regularly congregate. See § 948.03(5)(a)(6), Fla. Stat. Moreover, section 948.03(5)(a)(7) provides that, unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, sex offenders on probation or community control are prohibited from:
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. The various conditions set forth in section 948.03(5)(a) are standard conditions of probation or community control for certain sex offenders that need not be orally pronounced at the time of sentencing. See § 948.03(5), Fla. Stat.
Defendant argues that the phrase "relevant to the offender's deviant behavior pattern" should modify all aspects of the community control condition and, as such, only prohibits defendant from viewing or possessing material which is specifically related to his prior deviant acts. Under this view, the community control condition would be strictly limited to obscene and pornographic material that depicts fellatio or masturbation with an underage boy, similar to defendant's previous victim. Thus, the defendant contends that, since the defendant was convicted of a sexual offense on a minor under sixteen years of age, the State must prove that the pornographic material involved a minor under sixteen for a community control violation to be found.3 On the other hand, the State contends that the phrase "relevant to the offender's deviant behavior pattern" only modifies "telephone, electronic media, computer programs, or computer services" or, alternatively, "sexually stimulating visual or auditory material" and not all aspects of the community control condition. Under the State's view, the community control condition imposes a total ban on viewing or possessing any pornographic or obscene material.
In construing the language of a statute, courts are required to first consider the actual language of the statute. Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 897 (Fla.2002) (citations omitted); Campbell v. Kessler, 848 So.2d 369, 371 (Fla. 4th DCA 2003)( that a court "`must construe a statute according to the precise language used by the legislature'" (quoting Fla. Gulf Health Sys. Agency Inc. v. Comm'n on Ethics, 354 So.2d 932, 933 (Fla. 2d DCA 1978))). "[T]he intent of the legislature must guide our analysis, and that intent must be determined primarily from the language of the statute." Hale v. State, 891 So.2d 517, 521 (Fla.2004)(citing Miele v. Prudential-Bache Sec. Inc., 656 So.2d 470, 471 (Fla.1995)).
The language of section 948.03(5)(a)(7), as currently written, is undeniably susceptible to multiple and irreconcilable interpretations. For example, the statute may be read as imposing a complete ban on "any" form of obscene, pornographic or sexually stimulating material, including the listed materials. The statute could also be read as requiring all prohibited material to be "relevant to the offender's deviant behavior pattern." Moreover, the statute may be read as imposing a complete ban on obscene and pornographic material but with the limitation that, with respect to "sexually stimulating visual or auditory material," such material must be "relevant to the offender's deviant behavior pattern." These and other possible interpretations of legislative intent may be gleaned from the actual language of section 948.03(5)(a)(7). Because we recognize that the statute is ambiguous, we must look beyond the plain language of the statute.
The statutory prohibition on obscene or pornographic materials can be traced back to an earlier version of the statute which read as follows:
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 explicit material.
§ 948.03(5)(g), Fla. Stat. (1995) (emphasis added). A plain reading of the prior version of the statute clearly demonstrates that the original statute imposed a total ban on viewing, owning, or possessing "any obscene, pornographic, or sexually explicit material."
In 1997, the legislature amended section 948.03(5)(a)(7) through the passage of Committee Substitute for Senate Bill 1930 ("CS/SB 1930"). See ch. 97-308, § 3, at 5518, Laws of Fla. The 1997 amendment to subparagraph 7 provided as follows:
7.(g) 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 explicit material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern.
ch. 97-308, § 3, at 5520, Laws of Fla.4
Notably, there is nothing in the legislative history of the 1997 amendment that indicates that the legislature intended to modify the pre-existing total ban on viewing, owning, or possessing pornographic material. Instead, a review of the legislative history of the amendment provides critical insight by explaining precisely what the 1997 amendment intended to clarify. The Senate Staff Analysis and Economic Impact Statement concerning the amendment stated that:
CS/SB 1930 would also clarify the condition of probation, community control, and conditional release that prohibits the possession, viewing, or use of sexually "explicit" material to be sexually stimulating visual or auditory material that would include telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern.
Fla. S. Comm. on CJ, CS for SB 1930 (1997) Staff Analysis at 8 (fin...
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