In Re Commitment of Cartwright
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jennifer R. Haymes and Marilyn Muir Beccue, Assistant Attorneys General, Tampa, for Appellee.
CANADY, Judge.
John R. Cartwright appeals an order civilly committing him for treatment as a sexually violent predator under the statute commonly known as the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2000). Because we conclude that Cartwright has raised no meritorious issues, we affirm the cоmmitment order.
Cartwright raises certain meritless issues related to the conduct of his trial and the implementation of the Ryce Act. Cartwright also argues that the statutory framework for the involuntary civil commitment of sexually violent predators set forth in the Ryce Act violates various provisions of the Florida and United States Constitutions. Cartwright‘s challenge to the constitutionality of the statute is, however, largely foreclosed by the decisions in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding Kansas statute providing for the involuntary commitment of sexually violent predators against substantive due process, double jeopardy, and ex pоst facto challenges), and Westerheide v. State, 831 So.2d 93 (Fla.2002) (upholding Ryce Act against double jeopardy, ex post facto, due process, and equal protection challenges).1
I. PLEA AGREEMENT RIGHTS
Cartwright argues that the plea agreement he entered with the State—which resulted in his adjudication for multiple counts of attempted capital sexual battery—precluded the State from subsequently seeking his commitment under the Ryce Act. Cartwright contends that the State was contractually bound to release him from custody at the end of the incarceration portion of the sentence imposed on him pursuant to his plea agreement and that his commitment under the Ryce Act constitutes a violation of the plea agreement. Cartwright also argues that such a violation of the plea agreement was also a violation of thе due process clauses of the Florida and United States Constitutions.
These claims are unwarranted. In Murray v. Regier, 872 So.2d 217, 219-20, 2002 WL 31728885 (Fla. Dec. 5, 2002), the supreme court rejected a similar claim that the civil commitment of the defendant there had “[violated] his constitutional right to due process.”2 The court specifically concluded that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment under the Jimmy Ryce Act.” Id. at 224. Accordingly, any rights Cartwright might have under his plea agreement pertain only to the criminal sanctions against him. Any such rights are totally irrelevant to the subsequent separate civil proceedings against him under the Ryce Act. This is true whether Cartwright presents his claim as one based on his due process rights or on his contract rights. See Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998); State v. McFarland, 28 Fla. L. Weekly D2298, ___ So.2d ___, 2003 WL 22259634 (Fla. 1st DCA Oct.3, 2003); Marsh v. State, 849 So.2d 1178 (Fla. 3d DCA 2003); Sandillo v. State, 842 So.2d 1018 (Fla. 5th DCA 2003); Sublett v. State, 842 So.2d 314 (Fla. 5th DCA 2003); Satz v. Runion, 838 So.2d 689 (Fla. 4th DCA 2003).
II. HEARSAY EVIDENCE
Hearsay evidence related to Cartwright‘s prior attempted capital sexual battery offenses was admitted by the trial court over Cartwright‘s objection. The provision of the Ryce Act permitting the
Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.
Cartwright argues that this statutory provision is unconstitutional because it violates the due process and equal protection clauses of the Florida and United States Constitutions, as well as the provision of the Florida Constitution vesting the supreme court with the authority to adopt procedural rules.
In Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), this court recently addressed similar claims concerning the constitutionality of
We will specifically address two aspects of the challenge made by Cartwright to the constitutionality of
A. CONSTITUTIONAL RIGHT TO CONFRONTATION
Conner dealt with whether out-of-court statements would be admissible in a criminal prosecution. 748 So.2d at 954. The court‘s analysis in Conner focused on whether the challenged statutory provision for the admission of out-of-court statements violated the Confrontation Clause of the Sixth Amendment of the United States Constitution and the parallel provision in
B. THE SUPREME COURT‘S RULE-MAKING AUTHORITY
The second aspect of Cartwright‘s attack on the constitutionality of section
In response, the State contends that the challenged statutory provision allowing the admission of otherwise inadmissible hearsay is “substantive in nature, not procedural, and ... is therefore within the legislative domain.” The State relies on the decision in Booker v. State, 397 So.2d 910, 918 (Fla.1981), which held that the statutory provision permitting the consideration of otherwise inadmissible hearsay evidence in capital sentencing proceedings did nоt violate
We conclude that Glendening‘s holding that a statutory provision was procedural for purposes of analysis under the Ex Post Facto Clause is inapposite to the issue raised by Cartwright and that the holding in Booker supports the conclusion that
1. Survey of the Case Law Interpreting Article V, Section 2(a)
We begin our analysis of Cartwright‘s claim under
In Haven Federal Savings & Loan Ass‘n v. Kirian, 579 So.2d 730, 732 (Fla. 1991), the supreme court described the differences between substantive and procedural measures:
Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. On the other hand, practice and procedure” encompass the course, form, manner, means, method, mode, order, process[,] or steps by which a party enforces substantive rights or obtains redress for their invasion. `Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and corresponding defenses.
(Citations omitted). Although the definitions of substance and procedure provided by the court afford some guidance, they fall short of setting forth a standard that can mechanically be applied to separate the procedural from the substantive. The definition of procedure set forth by the court might be understood as pointing to the conclusion that matters of evidence—such as the admission of hearsay evidence—would ordinarily be considered prоcedural and not substantive. But, as we will discuss below, that conclusion would not be consistent with other pronouncements made by the supreme court on the issue.
The fact that a particular statutory provision could appropriately be labeled “procedural” does not necessarily mean that it violates
The supreme court has addressed the issue of whether rules of evidence are substantive or procedural by stating that they may fall on either side of the divide. Subsequent to the legislature‘s initial adoption of the Florida Evidence Code in 1976, the supreme court approved and adopted the statutory code as rules, pursuant to its authority under
The supreme court has similarly approved and adopted various amendments made to the Evidence Code by the legislature. See In re Amendments to the Fla. Evidence Code, 825 So.2d 339 (Fla.2002); In re Fla. Evidence Code, 638 So.2d 920, 920 (Fla.1993) (“The Florida Evidence Code enacted by the Legislature is both substantive and procedural.“); In re Amendment of Fla. Evidence Code, 497 So.2d 239 (Fla.1986); In re Amendment of Fla. Evidence Code, 404 So.2d 743 (Fla. 1981). The court has also specifically declined to approve and adopt an amendment made by the legislature to the Evidence Code. The court withheld its approval from
We agree that this Court should not adopt [section 90.803(22)] to the extent it may be procedural. However, we decline to address the substantive/procedural issue until such time as the issue comes before the Court in a true “case or controversy,” because to do otherwise would effectively pass on the constitutionality of the legislation itself.
In State v. Abreu, 837 So.2d 400 (Fla. 2003), the court was presented with a case or controversy involving a challenge to the constitutionality of
The supreme court has stated that a particular provision of the Evidence Code is a procedural measure. In State v. Page, 449 So.2d 813, 815 (Fla.1984), the court said, “Subsection 90.610(1), dealing with the use of prior convictions for the purpose of impeachment, clearly falls within the realm of `procedure.‘” Subsection 90.610(1) had previously been approved and adopted by the court as a rule of evidence to the extent the statutory provision was procedural. In Page, the issue was not whether the statute was unconstitutional but how the statute should be interpreted. The Page court relied on its characterization of the statute as procedural to support its conclusion that the legislature‘s intent was “irrelevant” to the interpretation of the statute, and that “pursuant to article V of the constitution it is [the court‘s] sole responsibility to determine which crimes involve `dishonesty or false statement’ for the purpose of impeachment.” The Page court did not provide any guidance concerning the basis on which it had chosen to characterize section 90.610(1) as procedural rather than substantive. See also State v. McFadden, 772 So.2d 1209, 1213 (Fla.2000) (relying on Page‘s characterization of section 90.610(1) as procedural to support conclusion that it is the “[c]ourt‘s responsibility to determine what constitutes a prior `conviction’ for purposes of impeachment under section 90.610(1)“).
In Booker, the supreme court specifically addressed the issue of the admission of hearsay evidence in capital sentencing proceedings under a provision of the Florida statute governing such proceedings. The Booker court, relying on Dobbert v. State, 375 So.2d 1069 (Fla.1979), rejected the challenge under
The foregoing limited survey of the case law makes clear that “[t]he distinction between substantive and procedural law is neither simple nor certain.” Caple, 753 So.2d at 53. The absence of a clear line of demarcation between substance and procedure is vividly illustrated by the supreme court‘s pronouncement that a particular statutory provision—under challenge for invading the province of the court‘s rule-making authority—was at once substantive and procedural: “The prohibition of the statute is surely procedural, just as it is substantive.” Sch. Bd. v. Price, 362 So.2d 1337, 1339 (Fla.1978) (holding that statute prohibiting mention of insurance coverage in action against sovereignly immune defendant did not invade the supreme court‘s rule-making authority).
The complexity and uncertainty surrounding the substance/procedure distinction arises in part from the circumstance that the distinction is applied in different contexts in different ways. “Except at the extremes, the terms `substance’ and `procedure’ precisely describe very little except a dichotomy, and what they mean in a partiсular context is largely determined by the purposes for which the dichotomy is drawn.” Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988); see also In re Fla. Rules of Crim. P., 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring) (“The entire area of substance and procedure may be described as a `twilight zone[,]’ and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.“). Accordingly, a measure which is substantive for one purpose, may be procedural for another. For example, a statute may be deemed procedural for purposes of Ex-Post-Facto-Clause analysis, while thе same statute is deemed substantive for purposes of analysis under
Such was the case in State v. Maxwell, 647 So.2d 871 (Fla. 4th DCA 1995). The decision of the Maxwell court was based on both Booker—on which the State relies in the instant case—and Glendening—on which Cartwright relies. In Maxwell, the trial court had determined that
2. Application of Booker and Dobbert
We conclude that Cartwright‘s reliance on Glendening is unwarranted and that the State‘s reliance on Booker is justified. Maxwell demonstrates beyond any doubt that Cartwright‘s reliance on Glendening is misplaced. Glendening‘s characterization of the statutory exception for child abuse victims’ hearsay as procedural for purposes of Ex-Post-Facto-Clause analysis cannot proрerly be extended beyond that context. Glendening thus sheds no light on whether the hearsay provision in
The State correctly cites Booker as the supreme court decision in which the court‘s holding deals directly with circumstances most closely analogous to the circumstances of the instant case. In an area of the law fraught with much uncertainty, Booker and Dobbert afford the best guidance available in the cases decided by the supreme court. In Dobbert and Booker the supreme court specifically held that a legislative provision authorizing the admission of hearsay did not violate
Under the Ryce Act, consideration of the facts related to the defendant‘s prior criminal adjudications for sexual offenses without the necessity of a full retrial of those prior cases is essential to the statutory scheme. The admission of reliable hearsay evidence under
4. Application of Rule 1.010
The constitutionality of
Proceedings under the Ryce Act are special statutory proceedings. The Ryce Act contains a detailed scheme in which the legislature has made special provisions for adjudicating the status of sexually violent predators. Although there is no specific definition of “spеcial statutory proceedings,” it would be unreasonable to understand that term as excluding the Ryce Act from its scope. Cf. Gonzalez v. Badcock‘s Home Furnishings Ctr., 343 So.2d 7 (Fla.1977) (upholding replevin statute as a special statutory proceeding under
If the supreme court has adopted a rule that specifically governs a special statutory proceeding with respect to a procedural matter, any conflicting statutory provision must yield to the court-adopted rule. But the adoption by the supreme court of the provisions of the code of evidence as rules of court to the extent that those provisions are procedural does not supplant all statutory provisions
III. JURY INSTRUCTIONS
Cartwright also argues that instructions given by the trial court to the jury were inadequate because they did not comply with the standard for the involuntary civil commitment of sexually violent predators established by the Supreme Court in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). In Crane, the Court held that substantive duе process requires that in such commitment proceedings “there must be proof of serious difficulty in controlling behavior.” Id. at 413, 122 S.Ct. 867.
At his trial, Cartwright requested that the jury be instructed that he could be involuntarily committed only if his mental abnormality or personality disorder “results in a volitional impairment rendering [Cartwright] dangerous beyond his control and makes it impossible for [Cartwright] to control his dangerous behavior.” The trial court rejected Cartwright‘s request and instead gave an instruction that made reference to the requirement of a finding that Cartwright‘s mental abnormality or personality disorder made him “likely to engage in aсts of sexual violence, if not confined in a secure facility for long-term control, care, and treatment.”
This court has addressed a similar challenge to the adequacy of jury instructions in both Lee and Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002). In both cases, we relied on the decision of the supreme court in Westerheide in reaching the conclusion that the failure to give an instruction specifically requiring a finding of serious difficulty in controlling behavior was not reversible error. The court in Westerheide affirmed the commitment order on appeal despite the failure of the trial court there to give such a “serious difficulty in controlling behavior” instruction. 831 So.2d at 107. The defendant in Westerheide arguеd that the failure to give such an instruction was fundamental error. In Westerheide, there was no majority opinion of the court. The plurality opinion, joined in by three justices, however, did specifically conclude that an instruction similar to the instruction given in the instant case was sufficient. The Westerheide plurality reasoned that Crane “requires [not] a specific jury instruction but rather that there must be proof of `serious difficulty in controlling behavior’ in order to civilly commit an individual as a sexually violent predator.” Westerheide, 831 So.2d at 107. The plurality further concluded that the instruction given at Westerheide‘s trial conveyed the same meaning as “serious difficulty in controlling behavior.” Justicе Quince concurred in the result reached by the plurality but did not join in the plurality opinion. In her special concurrence, she criticized the overall framework of the Ryce Act but made no specific comments regarding the adequacy of the jury instruction.
In light of the perceived uncertainty regarding the precedential effect of the decision in Westerheide and the significant interests at issue, this court in Lee—while affirming the commitment order—certified a question of great public importance to the Florida Supreme Court. We follow Lee and rely on the reasoning of the plurality
MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?
IV. CONCLUSION
For the reasons set forth above, the order committing Cartwright as a sexually violent predator under the Ryce Act is affirmed.
Affirmed; question certified.
STRINGER, J., concurs.
NORTHCUTT, J., concurs specially.
NORTHCUTT, J., Specially concurring.
I write separately only to emphasize that in Westerheide v. State, 831 So.2d 93 (Fla.2002), the supreme court did not decide the jury instruction issue addressed in Part III of Judge Canady‘s opinion in this case. The result reached by Judge Canady is dictated by Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), and Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002), and I likewise am constrained to concur in it. In my view, however, the jury instructions in this case were inadequate for the reasons expressed in Justice Pariente‘s plurality “dissent” in Westerheide.