Villanueva v. State

• Decision Date: 07 July 2016
• Docket Number: No. SC13–1828.,SC13–1828.
• Citation: 200 So.3d 47
• Parties: Victor VILLANUEVA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

200 So.3d 47

Victor VILLANUEVA, Petitioner,
v.
STATE of Florida, Respondent.

No. SC13–1828.

Supreme Court of Florida.

July 7, 2016.

200 So.3d 48

Carlos Jesus Martinez, Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Richard L. Polin, Bureau Chief, and Magaly Rodriguez, Assistant Attorney General, Miami, FL, for Respondent.

QUINCE, J.

Victor Villanueva seeks review of the decision of the Third District Court of Appeal in Villanueva v. State, 118 So.3d 999 (Fla. 3d DCA 2013), on the ground that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Arias v. State, 65 So.3d 104 (Fla. 5th DCA 2011), on the question of whether the trial court may order him to undergo mentally disordered sex offender (MDSO) therapy after a jury acquitted him of any sexual misconduct. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we find that the imposed probation condition is not limited to certain enumerated sex offenses but is invalid under this Court's decision in Biller v. State, 618 So.2d 734 (Fla.1993).¹ We therefore quash the decision of the Third District and remand this case to the trial court to modify the terms of Villanueva's probation.

FACTS

The Third District summarized the facts of this case as follows:

Villanueva was charged with one count of lewd and lascivious molestation of a child older than twelve, but less than sixteen years old. The victim, Y.V., was Villanueva's daughter, from whom he had become estranged by the time the girl was nine. When Y.V. was twelve, her family ran into Villanueva and arrangements were made for Villanueva to visit with Y.V. During the visit, Villanueva touched Y.V.'s breast. Y.V. testified that the touching of her breast was not accidental and lasted for several seconds. When she reacted, he laughed. Later, in Villanueva's car, he again put his hand on her breast. Finally, while Y.V. was in a bathing suit² at a swimming pool, he reached out and put his hand on her buttocks which caused her to exclaim, “hey, you touched me.” He apologized. Y.V. told her mother and, later, a teacher, who notified the police. Villanueva testified that he never touched Y.V.'s breasts.

Villanueva, 118 So.3d at 1001. The jury acquitted Villanueva of lewd and lascivious molestation but found him guilty of misdemeanor battery—a lesser included offense

200 So.3d 49

of the molestation charge. Id. at 1001. The trial judge sentenced Villanueva to ninety days in jail followed by one year of probation. Id. As a special condition of that probation, the judge ordered Villanueva to complete MDSO therapy. See id. at 1000 & n. 1. As explained by the Third District, that term is not mentioned or defined in Florida's statutory probation scheme, but the Third District assumed that the trial court was referring to sex offender therapy imposed pursuant to section 948.30(1)(c), Florida Statutes (2008). Id. at 1000 n. 1. That section sets forth additional conditions that must be imposed where the probationer has committed certain enumerated offenses and deems these additional conditions standard, not special, conditions for such probationers. While the charge of lewd or lascivious molestation is an enumerated offense within the statute, the crime for which Villanueva was convicted—misdemeanor battery—is not.

The trial judge explained his rationale for imposing the condition as follows:

I ordered ... [sex offender] therapy because he was found guilty of battery which is an illegal touching of someone else. That's what he was charged with, was the illegal touching of someone else. They just didn't find it to the same degree that the charging people did. Okay. That being the case, it was still an improper touching of his daughter, and he can acknowledge that in the sense of what it was and what he was found guilty of and go do the therapy, because he needs to learn that he can't do that to children and family.

Id. at 1001. The judge also explained he was ordering the therapy “so that [Villanueva] can get some insight into appropriate behaviors,” and specifically stated, “No, I want him to undergo MDSO therapy. It's not an MDSO plea, it's not an MDSO probation, just a condition of his probation.” The judge did not indicate under which statute he was ordering the therapy, but the probation order indicates that the therapy was imposed as a special condition of Villanueva's probation, not as a standard condition.

Villanueva appealed the trial court's decision, raising two related issues before the Third District: “(1) whether sex offender therapy as a condition of probation is restricted by statute to only certain enumerated sexual offenses; and (2) whether the imposition of that condition here comports with the standards governing probation announced by the Florida Supreme Court in Biller. ” Id. at 1001. The district court determined, as to the first issue, that “while there are circumstances in which sex offender therapy is a statutorily-required condition of probation, sex offender therapy can still be imposed as a special condition of probation outside of those statutorily-required circumstances when the facts of the crime so warrant.” Id. at 1003. The court explained that section 948.30 “contains no language that prohibits these conditions from being selectively imposed on the probation” for crimes other than those enumerated in that section. Id. at 1002. In fact, the Third District noted instances in which courts and even the Legislature itself have already authorized “some of the individual conditions listed in section 948.30 to be imposed for offenses other than those listed in the statute.” Id. at 1002. The district court also noted that reading the statute as limiting imposition of the condition to only the enumerated offenses is inconsistent with the broad discretion given trial courts to determine what conditions will promote a probationer's rehabilitation. Id. (citing §§ 948.03(2), 948.039, Fla. Stats. (2011) ). Accordingly, the Third District found that “the statute does not prohibit a judge from selectively requiring sex offender therapy as a special condition of probation for other

200 So.3d 50

offenses where appropriate.” Id. at 1001 (emphasis added).

Villanueva's second issue involved the application of our prior decision in Biller. In that case, we held that a special condition of probation “is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” Biller, 618 So.2d at 734–35 (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979) ). Applying that decision here, the district court found that in determining whether imposition of MDSO therapy comports with Biller, the trial judge is not limited to the face of the conviction but may consider the facts and circumstances of the case, as reflected in the record. Villanueva, 118 So.3d at 1003. Considering the record before it in this case, the Third District concluded that sex offender therapy is rationally related to Villanueva's crime because “the only non-consensual physical contacts that could support the battery conviction” were both sexual in nature. Therefore, the court found that “[t]he special condition of probation that Villanueva undergo sex offender therapy [ ] bears a rational relationship to his rehabilitation” for “the illegal and inappropriate touching of the child's breasts and buttocks.” Id. at 1003. The district court upheld the trial court's imposition of MDSO therapy but remanded the case to the trial court to correct a scrivener's error in the probation order. Id. at 1004. Villanueva now appeals on the basis of conflict jurisdiction.

ANALYSIS

Villanueva alleges conflict with Arias, in which the defendant entered a no contest plea to the charge of burglary of a dwelling with an assault or battery therein. Id. Although that charge was not one enumerated in section 948.30, the trial court imposed—as special conditions of the defendant's probation—the sex offender conditions found in section 948.30. The Fifth District Court of Appeal relied on Sturges v. State, 980 So.2d 1108 (Fla. 4th DCA 2008), to find that it was improper to impose the sex offender conditions found in section 948.30 unless the defendant was convicted of a crime specified in that section. Arias, 65 So.3d at 104.

In Sturges, the Fourth District Court of Appeal held that application of “sex offender probation pursuant to sections 948.30 and 948.31, Florida Statutes (2005) ” was inappropriate because Sturges was not convicted of one of the enumerated felonies for which those statutory provisions are imposed. 980 So.2d at 1109 (emphasis added). Thus, in that case, the sex offender probation conditions had been imposed mandatorily pursuant to section 948.30. The Fourth District did not have before it the question here: whether the conditions of sex offender probation can be imposed as special conditions of probation, not pursuant to the statute. In fact, the Fourth District concluded that a trial court “may impose probation and special conditions of probation which reasonably relate to the underlying charges.”...