Challenging Sexual Offender Laws

The public defender also represents persons facing civil commitment as “sexually violent predators” under Chapter 394 of the Florida Statutes. The concept of committing someone after their prison sentence has expired is a new and troubling use of civil commitment laws. These cases have spawned a host of legal issues.

In some of these cases, the state has filed petitions for commitment, thereby depriving these persons of their liberty, even though the state’s own team charged with making these determinations has not agreed that these persons should be committed. we opposed this practice and the appellate court ruled that it was illegal. Harden v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006). We have also litigated pretrial discovery issues caused by the prosecutor’s interference with the team’s decision. State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000).

We have litigated the question to whom does the statute apply. Ward v. State, 936 So. 2d 1143 (Fla. 3d DCA) rev. granted 939 So. 2d. 96 (Fla. 2006); Washington v. State, 866 So. 2d 725 (Fla. 3d DCA 2004); State v. Siddal, 772 So. 2d 555 (Fla. 3d DCA 2000). We have maintained that some of these commitments violate plea agreements calling for out-patient sexual offender treatment while on probation. Murray v. Regier, 872 So. 2d 217 (Fla. 2002); Ortega-Mantilla v. State, 898 So. 2d 1164 (Fla. 3d DCA 2005); Acosta v. State, 784 So. 2d 1137 (Fla. 3d DCA 2000); Murray v. Kearney, 770 So. 2d 273 (Fla. 4th DCA 2000).

These civil commitment cases often involve psychiatrists relying on information from cases or arrests from the distant past. The accuracy of those records, many of which were never subject to cross-examination in court, is a serious problem that we litigated vigorously. Pesci v. State, 32 Fla. L. Weekly D1721 (Fla. 3d DCA July 18, 2007), available at 2007 WL 2043423. We have also challenged the state’s burden of proof in these cases. State v. Bryant, 901 So. 2d 381 (Fla. 3d DCA 2005).

In specific cases, we have also challenged the sufficiency of the state’s evidence to meet the constitutional requirements. Donaldson v. State, 888 So. 2d 107 (Fla. 3d DCA 2004). Finally, we have challenged the adequacy of the standard jury instructions, both in specific cases and when they were promulgated. Standard Jury Instructions-Criminal Cases (99-2), 777 So. 2d 366 (Fla. 2000); Pearson v. State, 888 So. 2d 110 (Fla. 3d DCA 2004); Donaldson v. State, supra.

Recently, people with prior convictions for sexual offenses have been required to register as sexual offenders or sexual predators. We litigate to remove these labels when they are incorrectly applied. Sanchez v. State, 875 So. 2d 1285 (Fla. 3d DCA 2004); Maceo v. State, 870 So. 2d 852 (Fla. 3d DCA 2003); State v. Colon, 820 So. 2d 420 (Fla. 3d DCA 2002).

We have also challenged these statutes on behalf of clients for whom this public branding is unjust. In one of the leading cases, our client was in a club when another man bought a mutual female friend a drink. She drank half of it, and gave the client the rest. The drink was spiked and they both blacked out as they were leaving the club. The other man took them to a hotel room. The police eventually charged both men with the sexual assault, and our client pled guilty and agreed to testify against the man who drugged him and his friend.

Under the law, our client was automatically labeled a “sexual predator” even though the victim was never afraid of him, still considered him a friend, and was upset that the state had prosecuted him. We argued that due process required that he receive a hearing to determine whether he was a danger to the community before branding him a “sexual predator.” The appellate court agreed that he should receive a hearing. Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003).

The Supreme Court of Florida later disagreed. Milks v. State, 894 So. 2d 924 (Fla. 2005). In a bitter footnote, our client was deported because of this conviction before he could testify against the man who drugged the drink. Without his testimony, the true perpetrator walked free without any “sexual predator” label.

We have continued to raise other constitutional arguments on behalf of persons labeled as sexual predators or offenders. Garcia v. State, 909 So. 2d 971 (Fla. 3d DCA 2005); Reyes v. State, 911 So. 2d 202 (Fla. 3d DCA 2005); Navarro v. State, 888 So. 2d 144 (Fla. 3d DCA 2004); Gonzalez v. State, 808 So. 2d 1265 (Fla. 3d DCA 2002). We have also litigated motions to vacate guilty pleas taken where the person did not know the plea would result in the labeling, registration, and public notification requirements. Delarosa v. State, 913 So. 2d 76 (Fla. 3d DCA 2005).

The County and many municipalities have enacted ordinances prohibiting persons labeled as sexual predators or offenders with minor victims from living within a half mile of various locations such as schools, parks, school bus stops and day care centers. The net effect is virtual banishment, with some people living under a bridge because that it is the only place they could go without violating one of these ordinances. We have challenged the County ordinance because it purports to impose a penalty of up to a year in jail, when state law limits ordinance violations to 60 days. We are also in the process of raising broader constitutional challenges to these ordinances.