Pedroza v. State
| Citation | 773 So.2d 639 |
| Decision Date | 15 December 2000 |
| Docket Number | No. 5D99-1500.,5D99-1500. |
| Parties | Pedro Salsedo PEDROZA, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for Appellee.
The State of Florida, the appellee, instituted commitment proceedings against Pedro Salsedo Pedroza, the appellant, pursuant to the "Jimmy Ryce Act," hereinafter referred to as the Act.1 The Act establishes procedures for the involuntary civil commitment of sexually violent predators.
The commitment trial commenced with the State calling Pedroza as a witness. Pedroza had been convicted in 1981 of attempted sexual battery on a child under eleven years of age and aggravated assault. He received prison sentences of thirty and fifteen years respectively for those offenses. The evidence revealed that Pedroza discovered his victim, eight years old at the time, on the street outside an apartment complex. He approached her, grabbed her, and dragged her into a room in the apartment and, holding a knife to her throat, threatened to kill her if she screamed. He raped her and then stabbed her several times with the knife. Pedroza testified that he was under the influence of drugs and became angry when he could not penetrate the victim. He further testified that the little girl began to scream and he lost control of his emotions and started to stab her repeatedly with the knife.
At the conclusion of the commitment trial, the jury returned a verdict finding that Pedroza is a sexually violent predator. The trial judge, pursuant to the verdict, entered a final judgment of commitment, which committed Pedroza to the Department of Children and Families for confinement in a secure facility for control, care, and treatment until such time as Pedroza's mental abnormality or personality disorder has so changed that it is safe for him to be at large.
Pedroza appeals the final judgment of commitment and contends that reversal is warranted for the following reasons: 1) the Act is unconstitutional because it violates the due process, ex post facto, equal protection, and double jeopardy clauses of the federal and Florida constitutions; 2) the trial court erred by denying Pedroza's requested jury instruction defining the statutory terminology "likely to engage in acts of sexual violence"; and 3) the trial court erred by allowing the State's psychologists to testify that they believed Pedroza would reoffend. These are the same issues we that we considered in Westerheide v. State, 767 So.2d 637 (Fla. 5th DCA 2000). As we did in Westerheide, we affirm on all of these issues.
disapproved of on other grounds, Murphy v. International Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000); Newton v. South Florida Baptist Hosp., 614 So.2d 1195 (Fla. 2d DCA 1993); Wasden v. Seaboard Coast Line R.R., 474 So.2d 825 (Fla. 2d DCA 1985).
In Murphy, the court realized that the time had come "to restate the approach to be taken regarding the issue of improper, but unobjected-to, closing argument in civil cases." 766 So.2d at 1026-27. The court held that "a civil litigant may not seek relief in an appellate court based on improper, but unobjected-to, closing argument, unless the litigant has at least challenged such argument in the trial court by way of a motion for new trial even if no objection was voiced during trial." Id. at 1027. Pedroza did not file a motion for new trial. Therefore, he is not entitled to reversal. Furthermore, the prejudicial statements do not rise to the level of fundamental error that would require reversal and a new trial based on decisions of this court and other District Courts of Appeal decided prior to Murphy. See Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999)
; Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580 (Fla. 2d DCA 1996)4; see also Murphy.
We affirm the judgment of commitment. As we did in Westerheide, we certify to the Florida Supreme Court the following questions which we find to be matters of great public importance:
AFFIRMED; QUESTIONS CERTIFIED.
W. SHARP, J., concurs with certification only, and dissents, with opinion.
In my concurring opinion in Westerheide, I outlined my concerns regarding the constitutionality of the Jimmy Ryce Act. See Westerheide v. State, 767 So.2d 637, 659 (Fla. 5th DCA 2000) (Sharp, J., concurring)
. Specifically, I was troubled by the burden of proof and the statutory definitions of persons who can be confined for the remainders of their lives if found to be a "sexually violent predator." I now dissent because the jury instructions on a key element under the Act—whether the person is "likely" to reoffend—coupled with prejudicial comments by the prosecutor denied Pedroza a fundamentally fair trial.
The Involuntary Civil Commitment of Sexually Violent Predators Act, also known as the "Jimmy Ryce" Act, allows the state to confine sexually violent predators for long periods of time. Under the Act, a "sexually violent predator" is any person who has been convicted of a sexually violent offense, and suffers 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 long-term control, care, and treatment. § 394.912(10), Fla. Stat.
The definition of "sexually violent predator" is indeed circular, as set forth in the statute. It reminds me of some dictionaries that define a word by reference to another word, which refers one back to the first word. For example, The American Heritage Dictionary defines "abnormal" as "not normal; deviant" and after turning to "deviant" one is referred back to "differing from the norm."
To be classified as a "sexually violent predator" under this statute, a person first must have committed a "sexually violent offense." The statute lists some specific statutes, which clearly include the crime for which Pedroza was convicted. But one troubling aspect allows such a classification for "any criminal act, that has at any time been determined beyond a reasonable doubt to have been sexually motivated." § 394.912(9)(h), Fla. Stat. The possibilities of that latter category are infinite, and open to strange results. Would peeping Toms and Janes, or stalkers qualify?
The second part of the definition is the circular part: He or she "suffers 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 long term control, care and treatment." § 394.912(10)(b), Fla. Stat. Mental abnormality is defined as any mental condition "which predisposes the person to commit sexually violent offenses." § 394.912(5), Fla. Stat. "Likely to engage in acts of sexual violence" is defined "as a propensity to commit acts of sexual violence." § 394.912(4), Fla. Stat. In essence, when rolled together the statute defines sexual predator as a person who has committed a crime, specified by the statute, served the time for that crime in prison, and at the time of his or her release is "likely" to engage in acts of sexual violence in the future, unless confined for an indeterminate time, perhaps many years.
Since the second part of the definition turns on "likely," I agree with Pedroza that this term is key and vital, and that any jury instructions given should address what it means. Here Pedroza requested the following instruction to clarify this element:
The trial judge declined to give this instruction on the basis that it did not help and would make the issues more complicated and harder to understand. Instead, the judge instructed the jury in language which tracked the statutory language:
Likely to engage in acts of sexual violence means a person's propensity to...
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