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.

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.

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?

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

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.

Indeed! The same way they feel that the registry is NOT punishment! What a system.

Harmless to who?

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.

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.

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.

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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.