Therrien v. State, 1D01-3403.

• Decision Date: 25 November 2003
• Docket Number: No. 1D01-3403.,1D01-3403.
• Citation: 859 So.2d 585
• Parties: John Richard THERRIEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

859 So.2d 585

John Richard THERRIEN, Appellant, v. STATE of Florida, Appellee.

No. 1D01-3403.

District Court of Appeal of Florida, First District.

November 25, 2003.

Charles V. Peppler of Vernis & Bowling of Northwest Florida, Pensacola, for Appellant.

Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

BOOTH, J.

This cause arises from an appeal of a post-judgment order designating Appellant as a sexual predator pursuant to section 775.21, Florida Statutes (2000), as amended effective October 1, 1998.¹

The order on review addressed the October 1998 amendment to the Florida Sexual Predator Act ("Florida Act"). The trial court found the amendment's expansion of the sexual predator criteria, to include attempted sexual battery as a qualifying felony and permit sexual predator status without a predicate conviction, was procedural. Therefore, the trial court concluded that the 1998 amendment to the Florida Act could be applied retroactively to Appellant's August 1997 convictions for attempted sexual battery upon a person less than 12 years old and lewd and lascivious assault upon a child less than 16 years old. The trial court also held that the Florida Act does not violate separation of powers.

On appeal, Appellant argues that the Florida Act violates separation of powers and procedural due process requirements. Appellant also challenges the retroactive application of the amended Florida Act to him. We affirm Appellant's designation as a sexual predator and hold that the Florida Act is constitutional and was properly applied retroactively to Appellant.

The Florida Act provides that those meeting the criteria of "sexual predator" are subject to registration and notification requirements and to certain employment restrictions. Thus, "sexual predators" must register with the Florida Department of Law Enforcement within 48 hours of being released from a correctional or treatment facility and within 48 hours of entering a county to take up residence. § 775.21(6), Fla. Stat. (2000). The Florida Act also requires that local law enforcement agencies notify the public of each registered sexual predator's name, appearance, address, and certain details of the offense, including whether the victim was a minor. § 775.21(7), Fla. Stat. (2000). Finally, the Florida Act prohibits certain sexual predators from obtaining employment that affords access to children. § 775.21(10)(b), Fla. Stat. (2000).

In March 2003, the United States Supreme Court rendered its decisions in Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), and Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), addressing the constitutionality of sexual predator acts in Connecticut and Alaska. In Connecticut, supra, at 1163, the United States Supreme Court explicitly rejected the defendant's argument that the registration and notification requirements of the Connecticut statute violated procedural due process. The United States Supreme Court held, in pertinent part, as follows:

[E]ven assuming, arguendo, that the respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute.... [T]he 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 registrant's information.

Connecticut, supra, at 1164 (citations omitted) (emphasis supplied). In Smith, supra, at 1154, the United States Supreme Court upheld the constitutionality of the Alaska Sex Offender Registration Act, requiring registration and publication of sex offender information. The Court held that the Act was nonpunitive and did not violate the Ex Post Facto Clause. Smith, supra, at 1152.

In the instant case, Appellant's conviction is the only material fact necessary for the imposition of the requirements of section 775.21.² Appellant does not challenge the hearing afforded on his plea nor the opportunity allowed to contest his conviction. Appellant is not entitled to a separate hearing to prove that he does not pose a danger or threat to society.

As with the registration and notification requirements, the only material fact relevant to an employment restriction for sexual predators is a conviction involving minors. Therefore, in the present case, the only material fact for imposition of the employment restrictions is Appellant's conviction of an offense involving a minor. Accordingly, we hold that section 775.21 does not violate Appellant's rights to procedural due process under the state or federal constitutions. Accord Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003)

(holding that, based on the United States Supreme Court decision in Connecticut, the Florida Act does not violate procedural due process requirements). But see Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003) (holding that the Florida Act was distinguishable from the statutes in Smith and Connecticut and, therefore, violated procedural due process and certifying conflict with Milks).

Appellant correctly argues that an amendment that creates new rights or liabilities is presumed to apply prospectively. The presumption does not apply, however, where, as here, the Legislature has clearly stated an intent that the Act apply retroactively. See Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (Fla.1996)

. Section 775.21(4), Florida Statutes (2000), provides that the Act applies to offenses "committed on or after October 1, 1993."

Once the statute shows a clear intent for retroactive application, the second inquiry is "whether retroactive application is constitutionally permissible." Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). We hold that the retroactive application of section 775.21 is constitutionally permissible because the statute does not violate the procedural due process clauses of the state and federal constitutions.³ Connecticut, supra; Smith, supra.

Therefore, the trial court did not err in applying section 775.21(4), as amended, to Appellant.

We affirm Appellant's remaining arguments on appeal without further discussion. We certify the following question as a question of great importance:

WHETHER THE RETROACTIVE APPLICATION OF THE PERMANENT EMPLOYMENT RESTRICTIONS OF SECTION 775.21(10)(b), FLORIDA STATUTES (2000), TO A DEFENDANT CONVICTED AND QUALIFIED AS A SEXUAL PREDATOR, WITHOUT A SEPARATE HEARING ON WHETHER SUCH DEFENDANT CONSTITUTES A DANGER OR THREAT TO PUBLIC SAFETY, VIOLATES PROCEDURAL DUE PROCESS.

AFFIRMED.

VAN NORTWICK, J., CONCURS; BENTON, J., DISSENTS WITH WRITTEN OPINION.

BENTON, J., dissenting.

The present case asks the question whether a person never adjudicated guilty of any crime can nevertheless constitutionally be precluded for life from working anywhere children regularly congregate, without being afforded an opportunity to show that doing so would pose no danger to the public safety. In my judgment, the answer to this question is no, and I respectfully dissent from the judgment of the court for that reason.

Appellant was arrested and charged as a juvenile for offenses that allegedly took place in November of 1996, when he was sixteen. Eventually prosecuted as an adult, he entered pleas of nolo contendere to two second degree felonies: attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age, in violation of section 794.011(2)(b), Florida Statutes (1995), and lewd and lascivious assault upon (apparently the same) child less than sixteen years of age, in violation of section 800.04, Florida Statutes (1995).

An able and highly experienced trial judge decided against adjudicating appellant guilty of any criminal offense, no doubt in the hope that appellant had learned his lesson and would one day become a contributing member of society. The trial court withheld adjudication of guilt on both counts, and imposed concurrent five-year probationary terms conditioned on a county jail sentence of eleven months and fifteen days, which was suspended.

On October 6, 2000, the state filed its amended motion for an order finding that appellant qualified as a sexual predator under the Florida Sexual Predators Act. The motion relied on amendments enacted after appellant had allegedly committed the offenses nearly four years earlier.⁴ After a hearing on the motion, the trial court entered the order under review, finding on August 7, 2001, that appellant qualified as a sexual predator, and ordering him to register with the Florida Department of Law Enforcement.

In addition to registration and publicity requirements, the Act's prohibition against "work[ing], whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate" precludes appellant's working in all occupations that involve interaction with children, and in many that do not. § 775.21(10)(b), Fla. Stat. (2000). The french fry cook in a fast food establishment that high school students regularly patronize, the school janitor, the day care center roofer, the park groundskeeper, and many other positions are off limits for people covered by the Act. This blanket, life-long restriction on the right to work "[any]where children regularly congregate" makes no provision for an individual to whom it applies to make a showing that his or her employment poses no threat to public safety.⁵

Appellant contends⁶ that the Act's failure to afford an opportunity for individuals meeting the statutory criteria for disqualification from employment to present evidence that their employment would in...