Watrous v. State

• Decision Date: 07 March 2001
• Docket Number: No. 2D00-421.,2D00-421.
• Citation: 793 So.2d 6
• Parties: Donald WATROUS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

793 So.2d 6

Donald WATROUS, Appellant, v. STATE of Florida, Appellee.

No. 2D00-421.

District Court of Appeal of Florida, Second District.

March 7, 2001.

Rehearing Denied August 17, 2001.

PER CURIAM.

Donald Watrous appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion Mr. Watrous alleged that his plea was involuntary and his counsel ineffective because he was not advised that the plea would subject him to possible civil commitment under the Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators' Treatment and Care Act (hereinafter "the Act"). See §§ 394.910-931, Fla. Stat. (2000). He further alleged that counsel erroneously advised him that he would be released from custody almost immediately after pleading. We conclude that Mr. Watrous's second claim is facially sufficient and reverse as to it.

On June 21, 1999, Mr. Watrous pleaded guilty to three counts of handling and fondling a child under sixteen in exchange for a negotiated sentence of ten years' prison. He alleged that prior to entering the plea he was advised by his attorney that due to the amount of credit for time served that he had, he would be released from custody almost immediately.¹ He further asserts that he was not advised by either his attorney or the trial court that the plea would subject him to possible long-term involuntary civil commitment under the Act.

On July 16, 1999, the State filed an involuntary civil commitment petition against Mr. Watrous. Mr. Watrous, through counsel, filed the instant motion for postconviction relief in the trial court on September 24, 1999.² The trial court denied the motion, finding that civil commitment under the Act is a collateral consequence of the plea and neither the trial court nor counsel is required to advise the defendant of such a collateral consequence. The trial court did not address Mr. Watrous's related claim that counsel affirmatively misadvised him about when he would be released from custody.

We first address Mr. Watrous's claim that his plea was involuntary and his counsel ineffective because he was not advised of the possible effects of the Act. The trial court is correct that a trial court and counsel are generally only required to advise a defendant of the direct consequences of a plea and not the collateral consequences. See State v. Ginebra, 511 So.2d 960 (Fla.1987)

(holding that neither the trial court nor counsel is required to advise a defendant of the collateral consequences of a plea).³ Due process requires that a trial court advise the defendant of the direct consequences of the plea prior to accepting it. Similarly, in order to be constitutionally effective, counsel must advise a defendant of the direct consequences of the plea.

The issue thus becomes whether commitment under the Act is a direct or collateral consequence of a plea to a qualifying offense. In Ginebra, the supreme court defined direct consequences to include "only those consequences of the sentence which the court can impose." Id. at 961. Applying this definition, we would be constrained to conclude that commitment is a collateral rather than direct consequence. See id. (holding that deportation is not a direct consequence because the trial court has no authority concerning deportation). We however have certain misgivings about the continued validity of this definition in light of the supreme court's decision in Ashley v. State, 614 So.2d 486 (Fla.1993), in which the court held that a defendant must be advised of the reasonable consequences of habitualization, including its effect on gain time and other early release eligibility.⁴ We conclude that the broader definition of direct consequences followed by the federal courts and adopted by the Fourth District is more consistent with the result reached in Ashley.

`The distinction between `direct' and `collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.' Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.) cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973).

Daniels v. State, 716 So.2d 827, 828 (Fla. 4th DCA 1998).

We now apply that broader definition to the consequences faced by Mr. Watrous in this case to determine whether they are a direct or a collateral result of his plea. In order to commit someone under the Act, the State must prove by clear and convincing evidence that the person (1) has been convicted of a sexually violent offense and (2) 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 longterm control, care, and treatment. See §§ 394.912(10), 394.917. Thus, a conviction for a qualifying offense provides one of the necessary elements for commitment. See § 394.912.

In order to determine whether a person meets the second element, a multidisciplinary team performs an assessment of that person which includes a review of his or her records and a personal interview. This assessment is automatically triggered as result of a conviction for a qualifying offense. See § 394.913(1) (providing that the agency with jurisdiction over a person who has been convicted of a qualifying offense shall notify the multidisciplinary team and state attorney one year before that person's anticipated release); § 394.913(3) (providing that the multidisciplinary team shall assess and evaluate each person referred to the team). Although the assessment itself is automatically triggered, whether or not the multidisciplinary team recommends commitment will depend upon an evaluation of the person's current mental state to determine whether he or she is likely to engage in acts of sexual violence if not confined. See §§ 394.913(3), 394.912(10). A recommendation to file a petition does not, therefore, flow automatically from the prior conviction.

Moreover, even if commitment is recommended, this does not automatically result in either the filing of a petition or actual commitment. Once a person has been evaluated, the state attorney has discretion whether to seek commitment. See § 394.914.⁵ If the state attorney decides to pursue involuntary commitment, the person is entitled to a jury trial in which the State must prove by clear and convincing evidence that he or she is a sexually violent predator. See § 394.917. Thus, although a plea to a qualifying offense automatically puts a person at risk for commitment, it does not automatically result in that person's commitment.⁶ We conclude therefore that commitment under the Act is a collateral consequence of a plea. See Pearman v. State, 764 So.2d 739 (Fla. 4th DCA 2000)

.

Other state and federal courts have reached the same conclusion with regard to similar statutes allowing for the civil commitment of sexual predators. See, e.g., George v. Black, 732 F.2d 108 (8th Cir. 1984)

; Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App.1999); People v. Moore, 69 Cal.App.4th 626, 81 Cal.Rptr.2d 658 (1999); In re Care & Treatment of Hay, 263 Kan. 822, 953 P.2d 666 (1998); In re Detention of Campbell, 139 Wash.2d 341, 986 P.2d 771 (1999); State v. Zanelli, 212 Wis.2d 358, 569 N.W.2d 301 (App.1997).

We are compelled to also conclude that the failure of the trial court or counsel to advise a defendant of this collateral consequence does not render the plea involuntary and does not provide a basis on which to withdraw the plea. See Ginebra, 511 So.2d 960

; Pearman, 764 So.2d 739. We would note, however, that based on the severity of consequences under the Act, the better course of action would be for both the trial court and counsel to advise all defendants who could be affected by the Act of that possibility.⁷ We would also urge the supreme court to follow the course of action that it took after Ginebra and amend rule 3.172 to require trial courts to advise defendants of the consequences of the Act.

We now turn to Mr. Watrous's second claim that counsel affirmatively misadvised him that he would be released from custody almost immediately after pleading. Assuming that our above conclusion is correct that the effects of the Act are collateral consequences of which a defendant need not be advised, we nonetheless must reverse. It is well-settled that affirmative misadvice regarding even collateral consequences of a plea forms a basis for withdrawing the plea. See Simmons v. State, 611 So.2d 1250 (Fla. 2d DCA 1992)

(holding that defendant was entitled to withdraw plea if affirmatively misadvised about the possible effect on gain time although that was considered to be a collateral consequence of the plea); Ray v. State, 480 So.2d 228 (Fla. 2d DCA 1985) (holding that defendant who is affirmatively misled about his eligibility for gain time and its impact on the length of his sentence is entitled to withdraw his plea); Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993).

If, as Mr. Watrous claims, he pleaded in reliance upon his counsel's assertion that he would be released shortly after the plea and sentencing hearing, and this has not in fact happened, then Mr. Watrous would be entitled to withdraw his plea on this basis as well. We recognize that in so advising Mr. Watrous, counsel likely meant that Mr. Watrous would be released from the custody of the Department of Corrections. However, because a civil commitment petition was filed against him pursuant to the Act, Mr. Watrous was never released from custody but merely transferred from the Department of Corrections to the Department of Children and Families to be held in secure detention. See § 394.915(1) (providing that once a commitment petition is filed and a finding of probable cause made, the respondent shall "remain in custody and be immediately transferred to an...