Milks v. State, No. SC03-1321

• Decision Date: 03 February 2005
• Docket Number: No. SC03-1321, No. SC03-2103.
• Citation: 894 So.2d 924
• Parties: Everett Ward MILKS, Petitioner, v. STATE of Florida, Respondent. State of Florida, Appellant, v. Ferman Carlos Espindola, Appellee.
• Court: Florida Supreme Court

894 So.2d 924

Everett Ward MILKS, Petitioner, v. STATE of Florida, Respondent.

State of Florida, Appellant, v. Ferman Carlos Espindola, Appellee.

Nos. SC03-1321, SC03-2103.

Supreme Court of Florida.

February 3, 2005.

James Marion Moorman, Public Defender and Anthony C. Musto, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General and Christopher M. Kise, Solicitor General, Tallahassee, FL; Robert J. Krauss, Chief Assistant Attorney General and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, FL, for Respondent.

Charles J. Crist, Jr., Attorney General and Christopher M. Kise, Solicitor General, Tallahassee, FL, and Richard L. Polin, Criminal Appeals Bureau Chief, Miami, FL, for Appellant.

Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Appellee.

BELL, J.

We have before us two cases challenging the constitutionality of the Florida Sexual Predators Act, section 775.21, Florida Statutes (2003). In Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), the Second District Court of Appeal declared the Act constitutional, rejecting procedural-due-process and separation-of-powers challenges. In Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), the Third District Court of Appeal declared the Act unconstitutional on procedural-due-process grounds.¹ We approve the decision of the Second District in Milks and reverse the decision of the Third District in Espindola. We hold that the Act does not violate procedural due process or separation of powers and, as against these challenges, is constitutional. We decline at this time to consider the substantive-due-process and equal-protection challenges briefed by the parties but not addressed by the district courts below.

I. BACKGROUND

The Florida Sexual Predators Act lists certain offenses (and combinations of offenses) and mandates that a person convicted of any such offense be designated a "sexual predator." See § 775.21(4)(a)(1), Fla. Stat. (2003) (sexual predator criteria); § 775.21(5), Fla. Stat. (2003) (designation). Once designated as such, a "sexual predator" is subject, among other things, to the Act's registration and public-notification requirements. § 775.21(6), Fla. Stat. (2003) (registration); § 775.21(7), Fla. Stat. (2003) (public notification). The Act neither provides for any predesignation (or preregistration or pre-public-notification) hearing on the issue of an offender's actual dangerousness, nor does it provide the trial court with any discretion on the matter. If a person has been convicted of an enumerated offense, he must be designated by the court as a "sexual predator," and he is automatically subject to the Act's requirements.² In Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), the Second District declared the Act constitutional. The court rejected Milks' separation-of-powers challenge, citing Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001) (rejecting separation-of-powers challenge to the Act), and State v. Cotton, 769 So.2d 345 (Fla.2000) (rejecting separation-of-powers challenge to the Prison Releasee Reoffender Punishment Act). See Milks, 848 So.2d at 1169. The Second District also rejected Milks' procedural-due-process challenge. Citing Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), the court held that "due process did not entitle the defendant to a hearing to establish whether he or she was dangerous, as that fact was not material under the statute." Milks, 848 So.2d at 1169.

In Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), the Third District declared the Act unconstitutional on procedural-due-process grounds. "[I]n the absence of a provision allowing for a hearing to determine whether the defendant presents a danger to the public sufficient to require registration and public notification," id. at 1290, the Third District held that the Act "fails to provide minimal procedural due process." Id. at 1282. Relying on the statement of legislative findings contained in the Act, which state, among other things, that sexual predators "present an extreme threat to the public safety," § 775.21(3)(a), Fla. Stat. (2003), justifying the Act's registration and notification requirements, § 775.21(3)(b), Fla. Stat. (2003), the Third District concluded that "the determination of `dangerousness' is of import to [the Act]," and, consequently, the Act's "total failure to provide for a judicial hearing on the risk of the defendant's committing future offenses[ ] makes it violative of procedural due process." Espindola, 855 So.2d at 1290. Because it concluded that "dangerousness" was a material element under the Act, the Third District held that Doe was not controlling. Id.

II. DISCUSSION

A. Procedural Due Process

Espindola and Milks argue that the Act violates their rights to procedural due process. See U.S. Const. amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law."); art. I, § 9, Fla. Const. ("No person shall be deprived of life, liberty, or property without due process of law...."). This claim is based on the fact that the Act does not provide any procedure for determining in individual cases whether or not a person with an Act-qualifying conviction actually presents a danger to the community that would justify the imposition of the Act's requirements, particularly the Act's registration and public-notification requirements. The United States Supreme Court rejected an identical challenge to Connecticut's sex offender law in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), and we see no reason why the same result is not mandated here. In Doe, the United States Supreme Court considered a procedural-due-process challenge to Connecticut's sex offender law, which "applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose." 538 U.S. at 4,123 S.Ct. 1160. The federal circuit court held that Connecticut's Act "violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be `currently dangerous.'" Id. at 4, 123 S.Ct. 1160 (quoting Doe v. Department of Public Safety, 271 F.3d 38, 46 (2d Cir.2001)). The Supreme Court, noting that "Connecticut ... has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness," reversed the circuit court "because due process does not require the opportunity to prove a fact [e.g., current dangerousness] that is not material to the State's statutory scheme." Doe, 538 U.S. at 4,123 S.Ct. 1160. The Court went on to explain that

the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law.... [T]he law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrants' information....

In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed.... [A]ny hearing on current dangerousness [would be] a bootless exercise.

Id. at 7-8, 123 S.Ct. 1160 (citations omitted).

The same analysis applies here.³ Just as the Connecticut Legislature did, the Florida Legislature has decided that the Act's designation, registration, and public-notification requirements, as well as the Act's other provisions, such as its employment restrictions, "shall be based on the fact of previous conviction, not the fact of current dangerousness." Id. at 4, 123 S.Ct. 1160.⁴ To provide Espindola and Milks with hearings at which they could contest the fact of current dangerousness would be pointless. Even if they could prove that they present absolutely no threat to the public safety, the Act would still require that they be designated as "sexual predators," that they register, and that the public be notified. As the Court held in Doe, "due process does not require the opportunity to prove a fact [here, that one is not dangerous] that is not material to the State's statutory scheme." 538 U.S. at 4,123 S.Ct. 1160.⁵ The only material fact under Florida's statutory scheme, just as under Connecticut's, is the fact of a previous conviction — all of the burdens imposed by the Act, from the designation as a "sexual predator" to the registration and public-notification requirements to the employment restrictions, flow from the fact of a previous conviction — and both Espindola and Milks received "a procedurally safeguarded opportunity" to contest that fact. Id. at 7, 123 S.Ct. 1160. That is all that procedural due process requires.⁶

B. Separation of Powers

The Act vests no discretion in the trial courts with respect to determining whether the Act should apply to a particular qualifying offender. See § 775.21(4)(a)(1), Fla. Stat. (2003); Robinson, 873 So.2d at 1212 ("Under the Act, the sole criterion for determining whether a defendant must be designated a `sexual predator' is whether the defendant was convicted of a qualifying offense."). Espindola and Milks argue that this lack of discretion renders the Act violative of the Florida Constitution's separation-of-powers provision. They rely on Judge Padavano's concurring opinion in State v. Curtin, 764 So.2d 645 (Fla. 1st DCA 2000), where he suggested the possible constitutional infirmity because the statute "appears to `wrest from [the] courts the final discretion' to decide whether an offender should be declared a sexual predator." Id. at 648 (Padavano,...