STATE OF FLORIDA, Appellant, v. JAVARES JONES, Appellee.
No. 4D14-3019
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
[December 2, 2015]
Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, and Richard Valuntas, Assistant Attorneys General, West Palm Beach, for appellant.
Paul D. Lazarus, Fort Lauderdale, for appellee.
Robert V. Potter, Jr., F. Wallace Pope, Jr., and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, for amicus curiae Community Campaign Against Human Trafficking - West Florida, Inc., and International Association of Human Trafficking Investigators, in support of appellant.
LEVINE, J.
The state appeals a county court order finding the mandatory $5,000 civil penalty imposed under
Appellee was charged with solicitation of prostitution in violation of
IS THE $5,000 FINE MANDATED BY
FLA. STAT. § 796.07(6) (2013) FOR A FIRST VIOLATION OFFLA. STAT. § 796.07 (2013) , A SECOND-DEGREE MISDEMEANOR UNDER FLORIDA LAW, UNCONSTITUTIONALLY EXCESSIVE, IN LIGHT OF THE NATURE AND GRAVITY OF THE CRIMINAL OFFENSE BEING PUNISHED?
We review whether a fine is unconstitutionally disproportionate to the gravity of an offense de novo. United States v. Bajakajian, 524 U.S. 321, 336-37 (1998).
We start our review by noting several fundamental precepts of the law. First, a court should interpret a statute in a manner that would uphold its constitutionality. State v. Wells, 965 So. 2d 834, 837 (Fla. 4th DCA 2007). Second, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Bajakajian, 524 U.S. at 336. Third, “the courts will not declare a statutory fine to be excessive in violation of the Constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing the wrong.” Amos v. Gunn, 94 So. 615, 641 (1922). And finally, “the legislature is free to set civil fines and penalties in amounts which are not so excessive as to be ‘cruel’ or ‘unusual.‘” State v. Champe, 373 So. 2d 874, 879 (Fla. 1978). Having said all that, it is also true that when the legislature oversteps its authority, “the Constitution requires judicial engagement, not judicial abdication.” Florida ex rel. Atty Gen. v. Dep‘t of Health & Human Servs., 648 F.3d 1235, 1284 (11th Cir. 2011).
Solicitation of prostitution, a second-degree misdemeanor, is punishable by up to sixty days in jail and a fine up to $500.1 Significantly,
The ultimate question for our determination is whether the civil penalty authorized by this statute violates the Excessive Fines Clause of the United States Constitution and Florida Constitution.
A civil penalty implicates the Excessive Fines Clause if it constitutes a “punishment for some offense.” See Austin v. United States, 509 U.S. 602, 609-10 (1993); see also Busbee v. State, Div. of Ret., 685 So. 2d 914, 917 (Fla. 1st DCA 1996). A payment is remedial, and not punitive, if it compensates the government for a loss and therefore is not subject to the Excessive Fines Clause. See Bajakajian, 524 U.S. at 329. However, even a remedial civil fine or penalty “is subject to the Excessive Fines Clause if it serves in part to punish.” United States v. Lippert, 148 F.3d 974, 977 (8th Cir. 1998) (quoting Austin, 509 U.S. at 602).
Clearly, in this case the civil penalty is subject to the Excessive Fines Clause because it constitutes a punishment for the crime of solicitation of prostitution. Despite the fact that the $5,000 civil penalty is earmarked for concerns related to prostitution, such as drug court programs and safe harbor houses for sexually exploited children, it serves, at least in part, to punish and is thus not entirely remedial. Therefore, we must analyze the civil penalties through the Excessive Fines Clause.
“Fines may be excessive within the prohibitions of the Constitution when they are so great or numerous as to shock the conscience of reasonable men, or are patently and unreasonably harsh or oppressive as penalties for the wrongs sought to be redressed . . . .” Amos, 94 So. at 641. However, a fine only violates “the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant‘s offense.” Bajakajian, 524 U.S. at 334.
The United States Supreme Court has recognized that there is little in history or historical sources to help us determine “how disproportional to the gravity of an offense a fine must be in order to be deemed constitutionally excessive.” Id. at 336. The Excessive Fines Clause “was
To determine whether a fine is grossly disproportional, a court considers: “(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature . . . ; and (3) the harm caused by the defendant.” Gordon v. State, 139 So. 3d 958, 960 (Fla. 2d DCA 2014) (citation omitted). In this case, the trial court failed to consider any of these enumerated factors.2
As to the first factor, appellee clearly falls within a class of individuals this civil penalty was directed to. The $5,000 civil penalty is directed at those defendants, like appellee, who solicited a prostitute. Thus, this factor weighs in favor of upholding the civil penalty.
As to the second factor, the legislature authorized penalties of up to sixty days’ incarceration and up to a $500 fine in addition to this civil fine. When considering all of the legislatively authorized penalties in aggregation, we find they weigh in favor of upholding the civil penalty.
Finally, as to the third factor, the legislature, by increasing the civil fine from $500 to $5,000, has clearly expressed an increased concern about the harm caused by the crime of solicitation of prostitution. Although in this case, appellee did not directly harm anyone because he solicited an undercover police officer, his solicitation contributed to the demand for prostitution. See Gordon, 139 So. 3d at 964 (determining that an analysis of harm caused must include “potential harm caused” as well as “actual harm caused“). Thus, we look beyond appellee‘s immediate actions to the harm the legislature has sought to redress. We therefore find this factor weighs in favor of upholding the civil penalty.
Considering these factors, we cannot say that the $5,000 civil penalty for solicitation of prostitution is “grossly disproportional” to the gravity of the offense so as to violate the Eighth Amendment. Nor can it be said that
The trial court also relied, in part, on the degree of the offense in determining that the civil penalty was excessive. We note that other second-degree misdemeanors authorize similar fines or civil penalties of $5,000. See, e.g.,
In sum, we answer the certified question by determining that the $5,000 civil penalty is not violative of the Excessive Fines Clause. We thus reverse the order of the county court and remand for reinstatement of the civil fine as previously entered.
Reversed and remanded.
DAMOORGIAN and KLINGENSMITH, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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