State v. Ducharme, 5D03-3433.
| Decision Date | 30 December 2004 |
| Docket Number | No. 5D03-3433.,5D03-3433. |
| Citation | 892 So.2d 1133 |
| Parties | STATE of Florida, Appellant, v. Richard DUCHARME, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellant.
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
The state appeals from a final order dismissing with prejudice the state's involuntary civil commitment petition, which was filed pursuant to the "Jimmy Ryce Act," sections 349.910-349.931, Florida Statutes (2000). The lower court concluded that because Ducharme was detained in the county jail three days after being sentenced to "time served" prior to the commencement of the civil commitment proceedings, the court lacked jurisdiction to act on the petition. We disagree and reverse.
The record establishes that Ducharme was convicted of aggravated assault, which was sexually motivated in 1986. He was sentenced to two and one-half years in prison, to be followed by three and one-half years on probation. By 1987, Ducharme had been released from prison, and while on probation, he relocated to Michigan.
In Michigan, Ducharme was arrested for burglary and sexual assault, to which he pled no contest. He was incarcerated in Michigan from October 27, 1987 through April 24, 2000, for those offenses.
After serving his sentences in Michigan, he was returned to Florida for violation of his probation. At his VOP hearing held June 13, 2000, the court found he had violated his probation and he was sentenced to "time served.".
However, Ducharme was not released immediately. He was detained in the Orange County jail, until the State Attorney notified the Department of Corrections (DOC) of Ducharme's sentence, so that it could calculate when it ended. DOC later determined Ducharme's sentence ended on June 13, 2000, when it was pronounced.
DOC notified the Department of Children and Families (DCF) of Ducharme's imminent release, and DCF requested Ducharme be transferred to the Martin Treatment Center, a facility it supervised and used to evaluate whether persons meet the definition of a sexually violent predator under the Jimmy Ryce Act. Ducharme was transferred to that facility on June 16, 2000, by DOC. Within 72 hours after the transfer, Ducharme was evaluated by a multi-disciplinary team. The assessment took place on June 17 and 18. The team submitted its written assessment and recommendations to the state, within the same 72-hour period. Upon receipt of the report, the state filed an involuntary civil commitment petition, which is stamped as having been filed June 20, 2000, although the judge signed it on June 19, 2000, finding probable cause to detain Ducharme under the Act.
Two years later, Ducharme filed a motion for release and a motion to dismiss for lack of jurisdiction, arguing that the time requirements under the statute had run before the petition was filed because he was unlawfully detained in jail three days before being transferred to the custody of DCF. He relied on State v. Atkinson, 831 So.2d 172 (Fla.2002).
Section 394.9135, Florida Statutes (2000), sets out a detailed procedure which the state must follow under the Act, when release from total confinement of a person to be committed becomes "immediate for any reason." § 394.9135(1), Fla. Stat. (2000). It provides:
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...was authorized by section 948.06(1), Florida Statutes (1999), and Florida Rule of Criminal Procedure 3.790(b). See State v. Ducharme, 892 So.2d 1133, 1135 (Fla. 5th DCA 2004) (holding that Ducharme was in lawful custody on the effective date of the Act when he was returned to Florida to fac......
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...disagree with Gordon. Additionally, the ruling in Gordon cannot be reconciled with this court's opinion in State v. Ducharme, 892 So.2d 1133 (Fla. 5th DCA 2004), rev. dismissed, 895 So.2d 405 (Fla.2005) (Ducharme II), and the opinion of the Supreme Court of Florida in Tanguay v. State, 880 ......
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