Collie v. StateCollie v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Troy Lee Collie appeals the trial court order designating him to be a sexual predator. We affirm.
In July 1994, the State charged Collie with sexual battery and two other felonies committed on June 27, 1994. In September 1994, Collie entered an open plea of nolo contendere to all three counts. The court accepted Collie‘s plea and placed him on community control for two years followed by five years of probation on Count I. In March 1996, Collie admitted that he violated his community control in exchange for a sentence of five years’ prison, with credit for time served, which the court accepted and imposed.
Approximately twenty weeks after Collie had been sentenced, the State filed a notice of hearing to declare him to be a sexual predator. The trial court held a hearing, and found that Collie met the criteria for being declared a sexual predator and entered an order based upon its determination, stating that “[t]he Defendant meets the definition of sexual predator contained in former
Collie raises five issues in this appeal: (1) that the court lacked jurisdiction to declare him to be a sexual predator; (2) that the court failed to comply with the express requirements of
I. HISTORICAL REVIEW OF THE ACT.
1993 Act.
On October 1, 1993, the legislature enacted The Florida Sexual Predator‘s Act (“Act“) which was codified at
[A]n offender who is convicted on the current offense of or is found to have committed, regardless of adjudication, or who pleads nolo contendere or guilty to:
(a) Any capital, life, or first degree felony violation of chapter 794 or s. 847.0145, or of a similar law of another jurisdiction; or
(b) Any second degree or greater felony violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, or of a similar law of another jurisdiction, and who has previously been convicted of or found to have committed, regardless of adjudication, or has pled nolo contendere or guilty to, any violation of s. 794.011(2), (3), (4), or (5), s. 794.023, s. 794.041(2)(a) or (b), s. 800.04, s. 827.071, s. 847.0133, or s. 847.0145, or of a similar law of another jurisdiction.
Those designated as sexual predators under the 1993 Act are required to comply with the registration requirements of
Any sexual predator who fails to comply with the registration requirement commits a felony of the third degree; and if the offender is on supervised release, the failure to comply with the registration requirement will be considered a violation of the conditions of supervised release. See
1995 Act.
In 1994, the New Jersey legislature passed “Megan‘s Law” in response to the sexual assault and brutal murder of seven-year-old Megan Kanka by a twiceconvicted sex offender who lived nearby. Megan‘s Law was enacted for the specific purpose of providing parents and others in the community with notice and fair warning of the presence of convicted sex offenders. See Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995) (reciting history of New Jersey‘s Megan‘s Law).
Florida‘s version of Megan‘s Law was incorporated into The Florida Sexual Predator‘s Act in 1995 and codified at
The sexual predator definition under the 1995 Act remained virtually unchanged from the 1993 Act.5 Compare
[N]otify a sexual predator who registers with the department for an offense committed on or after October 1, 1995, of the requirement for a hearing before the circuit court for the county where the sexual
predator permanently or temporarily resides... to determine whether the sexual predator poses a threat to the public.6
The incorporation of
In making its determination of whether the sexual predator poses a threat to the public, the trial court must consider certain enumerated factors, including: the relationship between the sexual predator and the victim; whether the offense involved the use of a weapon or violence; the number of prior offenses; the risk of recidivism; and the sexual predator‘s response to treatment. See
1. The name of the sexual predator;
2. A description of the sexual predator, including a photograph;
3. The name of the county or municipality where the sexual predator temporarily or permanently resides;
4. The offenses and the circumstances surrounding the conviction of the sexual predator ...; and
5. The age of the victim....
1996 Act.
In 1994, The United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub.L. No. 103-322, Title XVII, § 170101, 108 Stat.2038 (1994) (codified at
In 1996, section (d) of the Wetterling Act was amended to authorize the disclosure of an offender‘s biographical information for “any permitted purpose” and directing State and local law enforcement agencies to release information necessary to protect the public. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act Amendments of 1996, Pub.L. No. 104-145, § 2, 110 Stat. 1345 (codified at
The amendment to section (d) of the Wetterling Act prompted the Florida Legislature to revise its sexual predator‘s act on July 1, 1996. The result was a new, comprehensive version of The Florida Sexual Predator‘s Act, codified at
The legislative intent of the 1996 Act was amended to include a strategy of “[p]roviding
To effectuate this new strategy, the legislature enacted a new community and public notification subsection which was codified at
Law enforcement agencies must inform the community and the public of a sexual predator‘s presence. Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator temporarily or permanently resides shall notify the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police.
Unlike the 1995 Act, the community and public notification subsection of the 1996 Act does not provide for a separate hearing to determine whether a sexual predator poses a threat to the public prior to notification. Instead, all offenders classified as sexual predators under the 1996 Act are subject to the community and public notification provisions of
Significantly, however, the community and public notification provisions of the 1996 Act have no retrospective application. The 1996 Act separates sexual predators into three categories. The first category includes those offenders whose current offenses occurred between October 1, 1993, and October 1, 1995. This category of offenders is not subject to any community and public notification. See
On the other hand, the sexual predator criteria subsection in the 1996 Act does have a retrospective application.
(a) For a current offense committed on or after October 1, 1993, and before October 1, 1995:
. . . . .
2. If an offender has been registered as a sexual predator by the Department of Corrections, the [Department of Law enforcement], or any other law enforcement agency and:
a. The court did not, for whatever reason, make a written finding at the time of sentencing that the offender was a sexual predator, or
b. The offender was administratively registered as a sexual predator because the Department of Corrections, the department, or any other law enforcement agency obtained information which indicated that the offender met the sexual predator criteria based on a violation of a similar law in another jurisdiction,
the department shall remove that offender from the department‘s sexual predator list,
and shall notify the state attorney who prosecuted the offense that triggered the administrative sexual predator designation for offenders described in sub-subparagraph a., or the state attorney of the county where the offender permanently or temporarily resides on October 1, 1996, for offenders described in sub-subparagraph b. The state attorney may bring the matter to the court‘s attention in order to establish that the offender meets the sexual predator criteria. If the court then makes a written finding that the offender is a sexual predator, the offender is designated as a sexual predator and must register or be registered with the department ... If the court does not make a written finding that the offender is a sexual predator, the offender is not designated as a sexual predator with respect to that offense, is not required to register or be registered as a sexual predator with the department....
Sections 775.21(4)(a)2 and (b)2, Florida Statutes (Supp.1996), are a substantial change from the 1993 and 1995 Acts which required that the sexual predator designation be made “at sentencing.” See §§
II. JURISDICTION.
In Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997), the Fifth District confronted this issue and held that the sexual predator designation was not an impermissible modification of the offender‘s sentence more than sixty days after the imposition of the original sentence “because the designation ‘sexual predator’ is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” Id. at 347.
We agree with the Fifth District‘s conclusion. Drawing from the analysis found later in this opinion, because the registration provisions retrospectively applied to Collie are not punishment, the sexual predator designation cannot be considered a sentence. The word sentence is defined as the imposition of criminal punishment. See McDaniel v. State, 683 So. 2d 597 (Fla. 2d DCA 1996) (holding that the revocation of a driver‘s license is not a sentence because no criminal punishment is imposed; therefore, it was not subject to correction through a 3.800 motion). Thus,
The trial court‘s jurisdiction in this case was conferred by the 1996 Act itself. See State ex rel. Caraker v. Amidon, 68 So. 2d 403 (Fla.1953) (stating that subject matter jurisdiction is conferred upon a court by a constitution or a statute). That jurisdiction permitted the trial court in this case to make the retrospective sexual predator designation. See
III. COMPLIANCE WITH SECTION 775.23, FLORIDA STATUTES (1993).
Collie argues that because the court failed to declare him to be a sexual predator at sentencing and then applied the 1996 Act, as re-enacted, to declare him to be a sexual predator, the court violated the ex post facto prohibitions.
The constitutional prohibition on ex post facto laws only applies to penal statutes which disadvantage the offender affected by them. See Collins v. Youngblood, 497 U.S. 37, 50, 110 S. Ct. 2715, 2723, 111 L. Ed. 2d 30 (1990). The issue here is whether
Applying Gwong to this case, the first prong is satisfied because the State concedes that it is employing
The provisions of the 1996 Act that have retrospective application are, for the most part, the same as those in the previous Acts. First, the definition of a sexual predator has remained the same in all three versions of the Act. Second, the 1996 Act provides that sexual predators shall be subject to the community and public notification provisions in effect at the time they committed their current offenses. See
Other than procedural changes, the only subsections in the 1996 Act, which could be perceived as having retrospective application, that differ from the previous Acts are: (1) the subsection which authorizes the FDLE to disseminate the “public information” in its sexual predator file by “any means deemed appropriate,”
It is important to remember, however, that the 1996 Act replaced the 1995 Act which was repealed. In McKibben v. Mallory, 293 So. 2d 48 (Fla.1974), the Florida Supreme Court stated that:
[W]here a statute has been repealed and substantially re-enacted by a statute which contains additions to or changes in the original statute, the re-enacted provisions are deemed to have been in operation continuously from the original enactment whereas the additions or changes are treated as amendments effective from the time the new statute goes into effect.
Id. at 53. Therefore, sections 775.21(6)(d)2 and (9)(b) which are new substantive provisions found only in the 1996 Act, cannot be applied retrospectively to Collie.
Nevertheless, we must recognize that at some future date, the FDLE may attempt to disseminate the “public information” in Collie‘s sexual predator file in accordance with
However, because Collie has not argued on appeal that sections 775.21(6)(d)2 and (9)(b) have been applied to him, that specific ex post facto argument is not ripe for review at this time. See Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir.1996). It is well settled that Florida courts will not consider hypothetical acts when assessing a
Accordingly, Collie‘s ex post facto challenge must be denied at this time. The application of
IV. PLEA BARGAIN AND DOUBLE JEOPARDY RIGHTS.
Collie argues that both his plea bargain and double jeopardy rights were violated when he was brought back to court for sexual predator designation, post-sentencing and after he had entered into a valid plea agreement. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228 (1980) (double jeopardy rights provide freedom from multiple punishments for the same offense).
Plea Bargain
Collie asserts that the sexual predator designation constitutes a breach of contract because it imposes punishment beyond that to which he contractually agreed. In Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996), the Third District Court held that the sexual predator designation was a collateral consequence of the guilty plea and the court was not required to advise the defendant of this consequence during the plea colloquy. We agree.
Additionally, Collie was on notice that he would be subject to sexual predator classification by its publication in the statute. “As to notice, publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.” State v. Beasley, 580 So. 2d 139, 142 (Fla.1991). Accordingly, we hold that Collie‘s plea bargain was not violated by his subsequent sexual predator designation.
We further find that designating an offender to be a sexual predator after he or she has entered a plea bargain does not constitute a breach of contract because the sexual predator designation is not a form of punishment. As we will demonstrate later in this opinion, designating an offender to be a sexual predator is a regulatory act done for remedial purposes. The “object” of the plea bargain is the punishment, and the object remains unchanged even though the sexual predator designation is made. Therefore, the Act should apply regardless of whether the offender was convicted after trial or through a plea bargain.
Double Jeopardy
To ascertain whether Collie‘s classification as a sexual predator violates the prohibition against double jeopardy, we must determine whether the sexual predator designation and its accompanying registration requirements constitute punishment. In United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), the Supreme Court stated that the Double Jeopardy Clause “serves the function of preventing both ‘successive punishments and ... successive prosecutions.‘” Id. at 271, 116 S. Ct. at 2139 (quoting United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556 (1993)); see United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. 2d 487 (1989); State v. Wilson, 680 So. 2d 411, 413 (Fla.1996).
In Ursery, the Supreme Court developed a two-prong test to determine whether a regulation is punitive for double jeopardy purposes. Under the first prong, the court must look at the legislative intent to determine whether the regulation was intended to be punitive or remedial. If the legislative intent was for the regulation to be punitive, then the analysis is complete and the regulation violates double jeopardy. However, if the legislative intent was for the regulation to be remedial, the court must evaluate the second prong which is whether the regulation is so punitive in fact that it may not legitimately
Therefore, in accordance with Ursery, we shall begin our analysis by reviewing the legislative intent of the 1996 Act.
(3) LEGISLATIVE FINDINGS AND PURPOSE; LEGISLATIVE INTENT.—
(a) Repeat sex offenders, sex offenders who use physical violence, and sex offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sex offenders are extremely likely to use physical violence and to repeat their offenses, and most sex offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sex offender victimization to society at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with a sufficient justification to implement a strategy
...
(c) The state has a compelling interest in protecting the public from sexual predators and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual predators to register and for requiring community and public notification of the presence of sexual predators.
This statement of legislative findings, purpose, and intent evinces a clear intent to protect the public. Moreover, there is no evidence anywhere in the statute to indicate an intent to punish. Therefore, under the first prong of the Ursery test, the legislative intent of
The second prong requires a determination of whether the statutory scheme is so punitive that it negates the nonpunitive intent. In many cases involving double jeopardy challenges to sex offender registration statutes, courts have applied the seven factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567, 9 L. Ed. 2d 644 (1963),7 to determine whether the statute is punitive despite a nonpunitive legislative intent. See, e.g., Rowe v. Burton, 884 F. Supp. 1372, 1378 (D.Alaska 1994); State v. Noble, 171 Ariz. 171, 175, 829 P.2d 1217 (1992); State v. Myers, 260 Kan. 669, 681, 923 P.2d 1024, 1033 (1996). The factors are:
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned....
See Mendoza-Martinez, 372 U.S. at 168-69, 83 S. Ct at 567-68 (footnotes omitted).
In Ursery, the Supreme Court also considered some of the Mendoza-Martinez factors in conducting its double jeopardy analysis. See Ursery, 518 U.S. at 289-93, 116 S. Ct. at 2148-49. Therefore, we find that they are appropriate for consideration here. We conclude that for the 1996 Act, as applied to Collie, these factors reflect a nonpunitive nature.
First, we find that the registration requirements imposed on sexual predators do not constitute an affirmative disability or restraint. The offender is not restricted in his movements into or out of a community and is required only to provide a package of information to the appropriate authorities. Moreover, registration does not affirmatively place limitations on the offender‘s activities.
Second, registration is not a historical form of punishment. In fact, registration is widely accepted as a public duty in other contexts such as the Selective Service System, the census, and voting. The registration of sexual predators under Florida‘s Sexual Predator‘s Act merely organizes the sexual predator‘s biographical information into a data bank for use by law enforcement authorities.
The only aspect of the sexual predator statute which may be perceived to be a historical form of punishment is the community and public notification provisions. Some may say that the notification provisions are akin to the infamous badge of punishment, the “Scarlet Letter,” and may lead to public stigma and ostracism. However, under the 1996 Act, the only offenders who are subjected to any form of community and public notification, retrospectively, are those offenders whose current offenses were committed between October 1, 1995, and July 1, 1996.9 Collie is not included in this category, but as to those offenders who are,
Third, the scienter element, if there is one, only comes into play when the offender is adjudicated guilty of the underlying offense(s). However, the fact that scienter is involved, even at such preliminary stages, may indicate that the law is punitive. Nevertheless, “[t]his factor must necessarily be considered a light weight in the balance, for, if accorded substantial significance, it would dictate decisions which could not be squared with the result in cases like United States v. Huss ....”10 Rowe, 884 F. Supp. at 1378-79.
Fourth, while we find that the operation of the registration requirements (and the public notification requirements for offenders whose crimes were committed between October 1, 1995, and July 1, 1996) have some deterrent effects, these effects are de minimis in light of the nonpunitive aim; specifically, protecting the public. The Act is intended to regulate the conduct of violent sex offenders,
Fifth, when a trial court designates a sex offender to be a “sexual predator,” it is because the offender‘s crimes qualified him or her for the designation. To that extent, the behavior to which the designation applies is already a crime. “However, as with the scienter factor, this factor cannot be given great weight without essentially dictating a result contrary to established precedent, such as United States v. Huss, supra.” Rowe, 884 F. Supp. at 1379.
Sixth, it cannot be said that the registration provisions are rationally connected to any alternative purpose. The registration and the limited public notification provisions in the 1996 Act, as applied retrospectively, simply provide information to law enforcement authorities and in some instances, the public, for the purpose of protecting the public. “This factor is one which points away from a punitive effect, for it discloses a benign, indeed laudable, effect.” Id.
Finally, the application of the 1996 Act is not excessive in relation to its intended purpose. As stated above, the registration requirements are limited to providing a package of information to the appropriate state department. Also, the public notice requirements under
After weighing the Mendoza-Martinez factors, we conclude that the registration requirements of
V. DUE PROCESS RIGHTS.
Collie argues that because he was designated to be a sexual predator in a hearing in which he was not present nor
However, the application of procedural due process is limited to situations involving deprivations of “life, liberty or property.” State, Dept. of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1217 (Fla. 2d DCA 1993), aff‘d in part, rev‘d in part, 656 So. 2d 902 (Fla.1995) (“Both the United States Constitution and the Florida Constitution limit the application of due process to deprivations of ‘life, liberty or property.’ “). Therefore, we initially must determine if the 1996 Act, as applied in this case, deprives Collie of life, liberty, or property.
In our attempt to identify deprivations of life, liberty, or property we can immediately rule out deprivations of life. We also find that the 1996 Act does not require the forfeiture of any property rights. Therefore, any procedural due process rights in this case necessarily will stem from a deprivation of Collie‘s liberty.
Collie argues that the sexual predator designation, by itself, infringes on his liberty rights. We reject this argument because we have determined that the sexual predator statute, as applied to Collie, is nonpunitive and remedial in nature.
Thus, we must look to other liberty rights. Our review identifies only one provision in the 1996 Act which, if applied retrospectively, would infringe on a constitutionally-protected liberty interest. That provision is the employment restrictions imposed in
However, as we have stated above, the employment restrictions imposed in
Furthermore, Collie has failed to argue on appeal that he is prohibited from pursuing certain employment due to the order designating him to be a sexual predator. Therefore, our review of the 1996 Act, as applied in this case, does not reveal any deprivations of Collie‘s due process rights. Accordingly, as to Collie, the procedural due process guarantees of a hearing and an opportunity to be heard are inapplicable.
VI. RIGHT TO COUNSEL.
Collie argues that an accused‘s constitutional right to counsel is guaranteed by the Sixth Amendment of the United States Constitution, which provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. Collie further argues that the Florida Constitution embodies the express right to be heard in person or to be represented by counsel or both,
However, the right to counsel only extends to criminal and quasi-criminal proceedings. See Hannah v. Larche, 363 U.S. 420, 440 n. 16, 80 S. Ct. 1502, 1513 n. 16, 4 L. Ed. 2d 1307 (1960). We have already determined that the 1996 Act, as applied to this case, is remedial in nature and that the sexual predator designation and its accompanying requirements do not impose punishment. Moreover, the legislative intent behind the statute is civil, rather than criminal. See Hendricks, 117 S. Ct. at 2081-82. Accordingly, we conclude that the sexual predator proceedings were not criminal or quasi-criminal in nature and that Collie had no constitutional right to counsel.
Affirmed.
PARKER, C.J., and PATTERSON and GREEN, JJ., concur.