Florida Court Decisions from Last Week
Last week the Florida Supreme Court rendered an opinion in Levandoski v. State a case that resolved the conflict between the 1st and 4th District Court of Appeals over whether ‘sex offender probation’ conditions had to be disclosed to the defendant at sentencing. The Supreme Court upheld the 4th DCA’s opinion that, “the court’s oral pronouncement that Levandoski would be subject to ‘sex offender probation’ was sufficient to impose each of the components contained in section 948.30″.
In other words, telling the defendant that he would be subject to ‘sex offender probation’ without detailing all the extra conditions that ‘sex offender probation’ is comprised of, is sufficient.
Two interesting items to point out in the decision. The opinion refers to the Statute which sets forth the conditions of ‘sex offender probation’ as “§ 948.30, Fla. Stat. (2010)” – 2010 being the year. As such, the court is alluding to the fact that the statute, in effect in 2010, when Levandoski was sentenced, was what he should look to when determining what his conditions of probation are. As we know; the 2010 version is different from the 2018 version, which has a lot of “extras” piled on.
Second, in the dissenting opinion, Justice Pariente, says, “this Court has made clear that “special conditions, which are those not specifically authorized by statute, must be orally pronounced at sentencing before they can be placed in the probation order.” Lawson, 969 So. 2d at 227 n.3. This requirement is a safeguard to protect the criminal defendant’s right to due process. “Because a defendant is not on notice of special conditions of probation, these conditions must be pronounced orally at sentencing in order to be included in the written probation order.” State v. Williams, 712 So. 2d 762, 764 (Fla. 1998).”
This raises an interesting point. New conditions and requirements that are added to the sex offender registry are imposed without any court determination as to whether an individual should be subject to them. Its the role of the courts to determine whether someone should be subject to a specific notification requirement or restriction that was not part of the statute when they were sentenced. This is something that will unquestionably be explored.
Another disturbing case decided by the 1st District Court of Appeal was Campbell v State which affirmed Campbell’s continued confinement and upheld the principal that, “Even assuming that no viable treatment is available for sexually violent predators, the Constitution does not prevent the State “from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others.” Kansas v. Hendricks, 521 U.S. [346] at 366, 117 S. Ct. 2072 (1997)”
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Now for the issue of the decision about parole and probation and the use of sex offender requirements it looks like the Florida Supreme Court is trying to skirt around the fact that they are required to specifically layout the requirements of parole and probation they cannot turn over the authority to parole and probation to make those decisions to do so is a violation of the nondelegation of authority doctrine. there are other issues here that should’ve been brought out also and there are plenty of court decisions that should’ve been cited. take a look at our article on SOSEN.org Parole and probation the real story which includes case sightings that any paralegal could use the Shepard index to find more information. http://sosen.org/blog/2017/04/01/probation-and-parole-the-real-story-2.html
Will, it doesn’t just look like “the Florida Supreme Court is trying to skirt around the fact that they are required to specifically layout the requirements of parole and probation.” This decision does away with that requirement all together. That’s the cause for the dissent by Justice Pariente, who didn’t see any reason for using this case to change the existing interpretation of the state law. But it was a 4 to 2 decision, so the hard liners are in control. Just makes it easier for trial judges to walk all over defendants by not disclosing what their probation conditions will be BEFORE they enter their plea. It’s another major setback for fairness in sentencing.
Okay some Attorneys paralegal staff didn’t do their homework. From my point of view, the case should’ve been argued differently. To begin with recognize the fact that Kansas v. Hendricks, 521 U.S. [346] at 366, 117 S. Ct. 2072 (1997)” is a prior case to Smith versus Doe where the frighteningly high recidivism was used to justify part of the decision which the courts saw as a public safety issue. but with an overall recidivism of less than 1% that entire argument goes out the window. there are other issues that should have been brought out that blows this decision out of the water. Here is an excerpt from http://sosen.org/blog/2018/02/12/now-we-have-the-civil-commitment-threat.html
If a person is ordered into a mental health program without due process, to see if they are mentally Ill and in need of treatment or proof that treatment will help them, then their rights under the 8th and 14th Amendments have been violated. Under the 8th and 14th Amendments, state may not show “deliberate indifference” to inmates mental health needs.” It was not appropriate for a court to determine what treatment…. a patient should receive at treatment center…” Cameron v. Tomes 783 F Supp 1511 (point: If the person is mental Ill and the crime happened because of that illness how was he criminally prosecuted for it?) (At the present time people who commit sex related crimes are not considered to be mental Ill. Yet after they have served their sentence how can they suddenly have a mental illness?) A person convicted of crimes deserve to be punished but this dose not give the state license to make prisoners objects of unguided behavior control experiments. Canterino v. Wilson 546 F Supp 174. “the loss of liberty is more then a loss of freedom from confinement. While a conviction and sentence extinguish an individuals right to freedom from confinement…they do not authorize the state to classify them as mentally ill and subject them to involuntary psychiatric treatment without according them the additional due process protection”. Vitek v. Jones 100 SCt 1254. The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. Cruzan v. Director Missouri Dept of Health 110 Sct. When a person is intentionally subjected to harsh conditions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment and a violation of the 8th Amendment (see Green v. Baron 662 F. Supp 1378) violating their First and 8th Amendment rights under the Federal Constitution. (if the state is forcing a person into an involuntary psychiatric treatment to change his thinking patterns, is this constitutionally correct?) the “State dose not have the right to control the moral content of a person’s thoughts” “This limitation on government is at the core of our constitutional values: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds” Staney v. Geogia 89 S.Ct. @1243. State v. Nance 735 P2d 1271 Conclusions based on conjecture about dangereness are insufficient. Mater of Lucas 571 P2d 571 Determination whether a person is dangerous beyond a reasonable doubt must focus on his or her condition at time of the. . . hearing State v. Daulton 566 P2d, 555 State v. Alexander 554 P2d 524, State v. G 552 P2d5 7 4.
Civil commitment is unconstitutional therefore illegal. It violates your civil rights and due process of law. It violate penal laws where sentencing does not take place by the right people. If civil commitment is for medical treatment, then the person should have never been convicted for the cause of the crime would have to be medical.
Ike,
Where has it been held to be unconstitutional, or is that your opinion?
I don’t know what the law on mental illness is in Florida, but in Michigan the insanity defense has been done away with. You can plead guilty but mentally ill, but all that gets you is some extra psych treatment in prison. Civil commitment is available in the federal system as well, so it obviously has not been successfully challenged as unconstitutional. The scary thing is that the practice may spread throughout the country.
Strangely, Justice Pariente’s analysis of specifically which conditions of F.S. 948.30 are applicable to non-enumerated offenses (orally pronounced or otherwise) might be the most important issue raised in this entire opinion; especially for anyone ensnared an undercover sex sting where a fictitious minor was involved:
“Thus, even if defendants understand that the term “sex offender probation”
refers to section 948.30, Florida Statutes (2010), a plain reading of the statute would not indicate that the conditions imposed within the statute applied to them… While the fact that Levandoski’s “victim” was an undercover officer—and not a fifteen-year-old girl, as Levandoski believed—does not negate his guilt, it is unclear whether this fact prevents these age-specific conditions of probation from applying to him. A reasonable reading of these subsections arguably could lead Levandoski, or any defendant, to conclude that they do not.” (17-18)
The question posited here has always struck me, as the statutes covering “thought crimes” are very specific, inclusive of language that reads “known by the defendant to be a minor or believed to be a minor”. I’ve often wondered about how someone could effectively challenge the conditions of 948.30 when a “believed to be a minor” victim is involved; reason being, F.S. 948.30 is most emphatically NOT as specific as these “thought crime” statutes are with reference to an actual victim. Pariente’s opinion makes the entirely fair argument that the language of 948.30 can result in completely different, objective interpretations of it. As background, I’ve overheard far too many conversations regarding these conditions involving undercover agent victim crimes where the standard FDLE response is always that 948.30 is to be read based on the circumstances of one’s charge. In the case of sex stings, as articulated by Justice Pariente in her dissent, this inference may very well be vague. Enough to challenge the statute itself? It’d take some guts… and probably lots of resources.
I’m not quite sure if the dissent(s) here are more for the benefit of encouraging Levandoski’s attorneys to pursue this further via a rehearing, to go the federal route, or whether they were inserted with the goal of “cleaning up” 948.30’s clearly ambiguous language. Whatever the rationale, it would certainly be helpful; not only in Levandoski’s cause for what is ultimately a due process issue, but also for some clarity in complying with this statute for anyone with similar circumstances in the future.
For FSC to rule in the fashion they did on this one certainly required some clever mental gymnastics:
“We nevertheless encourage trial courts to be as specific as possible during sentencing in order to avoid any misunderstanding regarding whether all, or
only some, conditions of sex offender probation are to be imposed.” (Pg. 12, Footnote #10)
Translation: “Mr. Levandoski, you’re right. Your attorneys, prosecutors, and judges all got this one wrong. Any other type of crime committed & those constitutional rights would’ve been preserved. Sorry kid.”
Yet another judicial travesty.
Very interesting. I was arrested in a sex sting with an imaginary victim. So please expound. Are you saying a lot of my probation and other restrictions don’t apply to my case?
Not at all. I don’t understand how you inferred that from this post.
I’m not saying or suggesting anything whatsoever regarding your particular case — or for anyone placed on “sex offender probation” for that matter — who are on it for a violation(s) of an offense not enumerated in F.S. 948.30. As I mentioned earlier, it would take the right type of case & plenty of resources to make the proper legal argument to address the unaddressed and important issues raised by Justice Pariente in her dissenting opinion. In it, she’s making the point that an unbiased, objective reading of 948.30 could result in either (or both) of the following scenarios:
Scenario #1 – A defendant placed on “sex offender probation” concludes that the only conditions applicable to his/her sentence are the ones where the offense(s) violated is/are the same offense(s) enumerated in the statute. This is due to the fact that each section of the statute (948.30(1), 948.30(2), 948.30(3), 948.30(4) & 948.30(5)) begins with (paraphrasing here) “effective for a probationer who is in violation of (a specific statute), the following conditions apply…”.
As Justice Pariente points out, despite the mental gymnastics exercised by the majority to deduce that “sex offender probation” means “F.S. 948.30,” a clear reading of the statute that defines “sex offender probation” (F.S. 948.001(13) does not, in fact, include any reference whatsoever to 948.30. At best, it may only imply it. Even still — and this is really the central issue here — this implication itself is specific only to “Additional terms and conditions of probation or community control for CERTAIN sex offenses” as identified by the statute. Going even deeper down this rabbit hole questioning the definition of “sex offender probation,” Pariente adds that nowhere in the Florida Statutes is there a law titled “Sex offender probation” or even “Conditions of sex offender probation” for that matter.
Due to the uniqueness (and stigma) of laws governing sex offenses, really the only legal guidance one can use to make a comparison with another type of crime is to look at how the courts interpret drug laws/sentencing. With that, looking at “drug offender probation,” for those individuals placed on “drug offender probation,” there is actually a specific statute (F.S. 948.20) titled “Drug offender probation.” While this statute (948.20) doesn’t identify the specific terms & conditions for “drug offender probation” in the same way that 948.30 (Additional terms and conditions of probation or community control for CERTAIN sex offenses”) does, “drug offender probation” can be imposed on anyone found in violation of a wide range of offenses as defined by F.S. 893.12(2)(a) or (6)(a). In that respect, the statutes are similar, as each statutorily-identifies specific statutes that, when found in violation thereof, can trigger “drug/sex offender probation.”
So, what happens if you agree to “drug offender probation” & your offense can’t be found in the statute governing “drug offender probation?” Think of it this way. Let’s say caffeine was an illegal drug. You get busted for possession and take a plea deal that includes “drug offender probation.” However, when you look up the statute that defines “drug offender probation” and check out all the offenses listed in it, your offense (possession of caffeine) isn’t listed. Sure, cocaine and marijuana and ecstasy are all listed, but YOUR OFFENSE (caffeine possession) is nowhere to be found! It’s an illegal drug — maybe identified as such somewhere in some other statute — but it’s not listed as an offense in the “drug offender probation” statute. You read all of this and then think “Hey, wait a minute. Why do I have to do all these “drug offender probation” things when my it doesn’t say what I have to do for my offense in the “drug offender probation” statute?”
At least in the eyes of one FSC justice, “drug offender probation” may very well mean nothing in terms of your sentence. This is due to the fact that the “drug offender probation” statute says “if you were found in violation of x, you qualify for drug offender probation.” You, on the other hand, were found in violation of “z.” So, when you go to the drug offender probation statute and look up what you have to do if you were found in violation of “z,” it only lists the things you have to do if you were found in violation of “x.” Not only that, but there’s no reference to a violation of “z” anywhere!
In the end, are you serving a sentence impermissible by law? Are the conditions of “drug offender probation” now special conditions that needed to be orally pronounced in court but weren’t so now you’ve got a due process violation? According to the majority in Levandoski, you would’ve needed to address your issue via a 3.800(b) motion to correct a sentencing error.
The difference with “sex offender probation,” however, is that, based on its ruling in Levandoski, FSC has chosen to define “sex offender probation” with 948.30. The problem with this approach — and apparently only Justice Pariente was courageous enough to bring this to light — is that if the Court is now going to use 948.30 as the legal definition of “sex offender probation,” then a plain reading of that statute means that the only conditions of “sex offender probation” that could be applied to a defendant are the ones where the defendant’s offense(s) are listed in the statute. The reason for this is because 948.30 was written with this type of specificity.
Scenario #2 – A defendant whose victim is fictitious concludes that, because 948.30(1)(b)(e)(f) & (4) all specifically address “If the victim was under the age of 18” and do not include the same language as statutes where the victim is fictitious and the defendant “had actual knowledge that the victim was a minor or believed to be a minor”, those conditions aren’t applicable to his/her sentence for the same reason as discussed in Scenario #1; 948.30 was written with this type of specificity.
—
Unfortunately, like a lot of these SO laws, challenging them is often an enormous undertaking and usually results in even more salt being rubbed in the wound. You need the right “John Doe(s),” the right attorney(s), the right argument(s), and substantial financial resources to even get a foot in the door. Even still, as was the case here with Levandoski where it looks like all of these benchmarks were met, the courts in Florida are reluctant (to put it mildly) to move the needle in the direction of anyone with the RSO label.
What is absolutely mind-boggling about this decision in particular is the court’s insertion of Footnote #10 on Page 12:
“We nevertheless encourage trial courts to be as specific as possible during sentencing in order to avoid any misunderstanding whether all, or only some conditions of sex offender probation are to be imposed.”
Seriously?!?
This statement completely contradicts the courts entire analysis that ultimately led to the majority opinion.
Some attorney out there needs take this on.
Please.
In the end, appellate courts often rule that it was just “harmless error” and not worth addressing. The harmless error doctrine has allowed many a judge to get away with improper procedures.
Harmless to who?
Indeed! The same way they feel that the registry is NOT punishment! What a system.
This is one serious response and shows lots of effort. Many thanks. Bottom line…justice is available to anyone in Florida with deep enough pockets.
This interesting – my son was adjudicated in 2010 – at the time the RSO probation was mentioned but no one seemed to be able to tell what the provisions were (so much like the first case mentioned) – he was young at the time and when we went to the office and the first thing they did was put the ankle monitor on he was terrified. If he had known before hand he could have prepared himself. Also, one thing that was very confusing was that probation had certain rules and the county had others. I have a question – since the judge said the plaintiff should look to the statute that was in effect at the time of sentencing does that mean that things that were added after that should not have applied to my son? Does that go for the county or Florida added RSOs laws as well?
@old Karen
Probationary conditions are determined upon the year of the charge, NOT the conviction. You state that his rules of probation are the 2010 guidelines? Then ONLY the terms included within affect your son.
The counties are quirky in that, yes, they do have some of their own rules but no they are not part of his probation. You should read up on those as well as they might be ex post facto violations.
Educate yourselves in the parts of law that affect you. Not only will there be no confusion on your part but you will be able to correct those who are.
Yes, select members of law enforcement would benefit greatly from knowing the details as well but sometimes it’s up us.
SC – registration requirements are applied retroactively.
They are CURRENTLY not subject to Ex Post Facto because they have not been found to be punitive.
Ex Post Facto only applies to punishment.
People have to follow the registration conditions currently in place until they are found to be violative of Ex Post Facto.
That’s why the 2 federal court rulings in Does v Snyder recently in Michigan are important ones for people in other states to cite. The unanimous rulings specifically said the the registry IS punishment, and that the state may not add on retroactive requirements. Of course, not all agencies here in Michigan are actually abiding by the ruling yet, but we remain hopeful. The biggest hope is that the U.S. Supreme Court will take up another case, and cite the real statistics. Here is a good article about those Michigan cases:
http://www.sado.org/Articles/Article/491
I understand that, which is why i said nothing other than what pertains to rules of probation.
I also wanted point out that conditions of probation vary by year and only the conditions for that particular year are enforceable. Although, getting this type of information to some probation officers can be problematic.
If these restrictions on probation are “retroactive”, how far back do they go? Is it 1 year, 5 years, what determines the length of time. When I was convicted and sentenced by the Judge, there was no mention of a sex offender list. IO was notified about this restriction when I was well into my 10 years probation. This requirement needs to be abolished.
if you were on sanctions (probation) when notified – it existed at that time and you would be hit with it.
Not right, but it is the way it is… currently
I find it unusual in the wording of Florida sex offender laws that if you have not been released from sanctions you are subject to registration..not based on a conviction date or even a charge date. Other laws seem to have a defined date as to application of the law. But since I was on probation at the time of the law being enacted I have to register..if these laws are held to be ex post facto violations will I see any relief?
That is the big hope of many sex offenders Robert, that the U.S. Supreme Court will finally take up a case that rules that NO states may make retroactive changes to their registry laws. You and a great many people would be entitled to relief if that ever happens. It all hinges on the common sense recognition that sex offender registries ARE a punishment. The Federal Sixth Circuit Court of Appeals DID recognize that recently in Does v Snyder. Hopefully, that kind of honest conclusion will spread throughout the land.
Sc – thank you. We are well aware of the parts of the law that affect us – although I have always said that (at least in Seminole Cty.) Everything added to RSO laws is applied to all RSOs across the board – new and old. Some of the statutes have an ex post facto clause but I think most RSOs have to advocate to have it applied to them. The system is flawed all the way around – there is no way for them to maintain control over which laws apply to which RSO (not talking about on paper but off).
I guess I am reading to much into Justice Pariente’s opinion. I hope I make sense here – He talks about due process and things that are added to RSO probation (that are not included in the statute) remove the right to due process if they are not specifically mentioned in the adjudication. If you read the statute it does not state anywhere that the person will be placed on the registry. In my sons case they tried (his lawyer and the judge) tried to get a provision that he would not be on the registry (he was deemed a youthful offender) but when it came to rules and provisions about the registry itself not one person in the court room could answer what the provisions were. Now I know that supposedly the registry laws are considered (at the present time) not punitive etc. but there are criminal repercussions for not complying so to me these things should also be mentioned in the adjudication.
It may seem that I do not understand but believe me I understand all too well, however, it is often the little details that put chinks in the walls of injustice.