State v. Jones

• Decision Date: 02 December 2015
• Docket Number: No. 4D14–3019.,4D14–3019.
• Citation: 180 So.3d 1085
• Parties: STATE of Florida, Appellant, v. Javares JONES, Appellee.
• Court: Florida District Court of Appeals

180 So.3d 1085

STATE of Florida, Appellant,

v.Javares JONES, Appellee.

No. 4D14–3019.

District Court of Appeal of Florida, Fourth District.

Dec. 2, 2015.

Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, and Richard Valuntas, Assistant Attorneys General, West Palm Beach, for appellant.

Paul D. Lazarus, Fort Lauderdale, for appellee.

Robert V. Potter, Jr., F. Wallace Pope, Jr., and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, for amicus curiae Community Campaign Against Human Trafficking—West Florida, Inc., and International Association of Human Trafficking Investigators, in support of appellant.

LEVINE, J.

The state appeals a county court order finding the mandatory $5,000 civil penalty imposed under section 796.07(6) to be unconstitutionally excessive and certifying a question of great public importance. This court has jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). See also Fla. R.App. P. 9.030(b)(4)(A), 9.160.

Appellee was charged with solicitation of prostitution in violation of section 796.07(2)(f), Florida Statutes (2013). Appellee allegedly offered to pay an undercover officer $40 in exchange for sex. Appellee pled no contest to the charge. The trial court imposed a $5,000 civil penalty pursuant to section 796.07(6), Florida Statutes (2013). Subsequently, appellee filed a motion to vacate the plea and sentence, arguing that the civil penalty violated the United States Constitution and the Florida Constitution. The county court denied the motion to vacate the plea and sentence but held a hearing on the constitutionality of section 796.07(6). The trial court found the statute unconstitutional, determining that the $5,000 civil penalty was "excessive, unduly oppressive, and unreasonably harsh, such that it shocks the conscience of reasonable persons." The county court struck the civil penalty from the final judgment and certified the following question, on which basis the state appeals:

IS THE $5,000 FINE MANDATED BY FLA. STAT. § 796.07(6) (2013) FOR A FIRST VIOLATION OF FLA. STAT. § 796.07 (2013), A SECOND–DEGREE MISDEMEANOR UNDER FLORIDA LAW, UNCONSTITUTIONALLY EXCESSIVE, IN LIGHT OF THE NATURE AND GRAVITY OF THE CRIMINAL OFFENSE BEING PUNISHED?

We review whether a fine is unconstitutionally disproportionate to the gravity of an offense de novo. United States v. Bajakajian, 524 U.S. 321, 336–37, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).

We start our review by noting several fundamental precepts of the law. First, a court should interpret a statute in a manner that would uphold its constitutionality. State v. Wells, 965 So.2d 834, 837 (Fla. 4th DCA 2007). Second, "judgments about the appropriate punishment for an offense belong in the first instance to the legislature." Bajakajian, 524 U.S. at 336, 118 S.Ct. 2028. Third, "the courts will not declare a statutory fine to be excessive in violation of the Constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing the wrong." Amos v. Gunn, 84 Fla. 285, 94 So. 615, 641 (1922). And finally, "the legislature is free to set civil fines and penalties in amounts which are not so excessive as to be ‘cruel’ or ‘unusual.’ " State v. Champe, 373 So.2d 874, 879 (Fla.1978). Having said all that, it is also true that when the legislature oversteps its authority, "the Constitution requires judicial engagement, not judicial abdication." Florida ex rel. Atty. Gen. v. Dep't of Health & Human Servs., 648 F.3d 1235, 1284 (11th Cir.2011).

Solicitation of prostitution, a second-degree misdemeanor, is punishable by up to sixty days in jail and a fine up to $500.¹ Significantly, section 775.083(g) authorizes the imposition of fines in "[a]ny higher amount specifically authorized by statute." Effective January 1, 2013, the legislature increased the civil penalty for the offense of solicitation of prostitution from $500 to $5,000. Ch. 2012–105, § 7, Laws of Fla. This civil penalty is in addition to the $500 fine authorized for a second-degree misdemeanor. Section 775.083(6) directs that $500 of the $5,000 civil penalty be used to pay the administrative costs of treatment-based drug court programs and that the remainder be used to fund safe houses for sexually exploited children.

The ultimate question for our determination is whether the civil penalty authorized by this statute violates the Excessive Fines Clause of the United States Constitution and Florida Constitution. Amend. VIII, U.S. Const.; Art. I, § 17, Fla. Const.

A civil penalty implicates the Excessive Fines Clause if it constitutes a "punishment for some offense." See Austin v. United States, 509 U.S. 602, 609–10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) ; see also Busbee v. State, Div. of Ret., 685 So.2d 914, 917 (Fla. 1st DCA 1996). A payment is remedial, and not punitive, if it compensates the government for a loss and therefore is not subject to the Excessive Fines Clause. See Bajakajian, 524 U.S. at 329, 118 S.Ct. 2028. However, even a remedial civil fine or penalty "is subject to the Excessive Fines Clause if it serves ‘in part to punish.’ " United States v. Lippert, 148 F.3d 974, 977 (8th Cir.1998) (quoting Austin, 509 U.S. at 602, 113 S.Ct. 2801 ).

Clearly, in this case the civil penalty is subject to the Excessive Fines Clause because it constitutes a punishment for the crime of solicitation of prostitution. Despite the fact that the $5,000 civil penalty is earmarked for concerns related to prostitution, such as drug court programs and safe harbor houses for sexually exploited children, it serves, at least in part, to punish and is thus not entirely remedial. Therefore, we must analyze the civil penalties through the Excessive Fines Clause.

"Fines may be excessive within the prohibitions of the Constitution when they are so great or numerous as to shock the conscience of reasonable men, or are patently and unreasonably harsh or oppressive as penalties for the wrongs sought to be redressed...." Amos, 94 So. at 641. However, a fine only violates "the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028.

The United States Supreme Court has recognized that there is little in history or historical sources to help us determine "how disproportional to the gravity of an offense a fine must be in order to be deemed constitutionally excessive." Id. at 336, 118 S.Ct. 2028. The Excessive Fines Clause "was little discussed in the First Congress and the debates over the ratification of the Bill of Rights. As we have previously noted, the Clause was taken verbatim from the English Bill of Rights of 1689." Id. at 335, 118 S.Ct. 2028.

To determine whether a fine is grossly disproportional, a court considers: "(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature ...; and (3) the harm caused by the defendant." Gordon v. State, 139 So.3d 958, 960 (Fla. 2d DCA 2014) (citation omitted). In this case, the trial court failed to consider any of these enumerated factors.²

As to the first factor, appellee clearly falls within a class of individuals this civil penalty was directed to. The $5,000 civil penalty is directed at those defendants, like appellee, who solicited a prostitute. Thus, this factor weighs in favor of upholding the civil penalty.

As to the second factor, the legislature authorized penalties of up to sixty days' incarceration and up to a $500 fine in addition to this civil fine. When considering all of the legislatively authorized penalties in aggregation, we find they weigh in favor of upholding the civil penalty.

Finally, as to the third factor, the legislature, by increasing the civil fine from $500 to $5,000, has clearly expressed an increased concern about the harm caused by the crime of solicitation of prostitution....