State v. KobelState v. Kobel
Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Ft. Lauderdale, for respondent.
The petitioner, State of Florida, seeks a writ of certiorari quashing the lower court‘s order, which directed that the respondent, James Kobel, be released from the Martin County Treatment Center, where he was being held under the Jimmy Ryce Act (the “Act“),
We grant the petition and quash the lower court‘s order, because we find no due process violation in this case which, unlike Valdez, involved the immediate release
On August 25, 1999, in Kobel v. State, 745 So. 2d 979 (Fla. 4th DCA 1999) (en banc), this court affirmed Kobel‘s Broward County convictions for attempted indecent assault of a minor, but reversed his convictions for attempted procurement of a minor for prostitution. On a motion for clarification, we directed that on remand, Kobel‘s sentence for the attempted procurement conviction be reduced to solicitation, a second degree misdemeanor, and that Kobel be resentenced for the attempted indecent assault conviction upon recalculation of his scoresheet. See id. at 983.
As a result of that decision, the lower court conducted a resentencing hearing on January 6, 2000. The court sentenced Kobel, who was not present at the hearing, to time served and ordered his immediate release from prison.
Pursuant to the immediate release provision of the Act,
On Tuesday, January 11, 2000, the team recommended Kobel‘s commitment. The same day, the state attorney filed a petition to have him committed under the Act. Also that day, Judge Leroy Moe conducted an ex parte probable cause hearing and determined that there was probable cause to believe that Kobel qualified for commitment. Judge Moe ordered that Kobel remain in the custody of the Department of Children and Family Services (“DCFS“), which has jurisdiction over Ryce Act commitments, and be transferred to a secure facility. The judge set a hearing for January 19, 2000 for “Determination of Counsel and/or Indigency” at which the public defender was to appear.
On January 19, 2000, Judge Thomas Lynch held a hearing at which assistant public defender Diane Cuddihy appeared along with Kobel and an assistant state attorney. She advised that the public defender‘s office had contracted with private counsel, Warner Olds, to represent Kobel in the Ryce Act proceedings. Cuddihy requested that the court schedule an adversarial probable cause hearing subject to Mr. Olds‘s availability.1
Judge Lynch noted this court‘s recent decision in Valdez, which held that a person who is confined after completion of his criminal sentence without an adversarial probable cause hearing is denied due process. This court directed that the petitioners in that case be afforded an adversarial probable cause hearing within five days of the date of the Valdez opinion. See 745 So. 2d at 1012. Judge Lynch inquired as to “the five-day time frame” for holding an adversarial probable cause hearing. The assistant state attorney responded that there was some confusion as to whether the five-day period “was [to run] five days from the end of the incarceration or [from] the petition being filed.” Judge Lynch commented that if Valdez required an adversarial hearing to be held within five days from the expiration of the sentence, “I don‘t see how any court could comply with that.” The prosecutor indicated that the state was “ready to go” with the adversarial probable cause hearing. The parties
On January 20, 2000, attorney Olds, on Kobel‘s behalf, filed an emergency motion for release from custody on the ground that Kobel had not been afforded an adversarial probable cause hearing within five days from his prison release date.
On January 25, 2000, Judge Lynch held a hearing on the emergency motion. Kobel argued that under Valdez, whether the five days for an adversarial hearing runs from an inmate‘s release from criminal incarceration or from the filing of the civil commitment petition, Kobel was entitled to release; the five days had expired under either scenario. Kobel maintained that under Valdez, the running of the five-day period is not triggered by a request for an adversarial hearing. Kobel argued that there must be an adversarial hearing within five days of a prisoner‘s civil confinement under the Act and that the clock for the five-day time limit begins to tick on the date when the criminal sentence expires and the civil confinement begins.
In a written order, Judge Lynch concluded that, in violation of Valdez, Kobel had not been afforded an adversarial probable cause hearing within five days of his confinement at Martin County Treatment Center, and that he was therefore entitled to immediate release. The order noted that Kobel had been detained for 19 days beyond the expiration of his sentence without an adversarial hearing. The court ruled:
It is a denial of due process to civilly detain individuals that have completed their sentences, unless there is an adversarial probable cause hearing within 5 days of the civil commitment.
The court released Kobel pending an adversarial probable cause hearing set for February 4, 2000. The state sought certiorari review of this order.
This court stayed that portion of Judge Lynch‘s order requiring Kobel‘s release and issued an order to show cause why the petition for certiorari should not be granted. After the filing of a response and reply, to maintain the status quo, we ordered that the stay would remain in effect, provided that the scheduled adversarial hearing took place on February 4, 2000. The parties were directed to notify this court immediately if that hearing did not occur. The hearing apparently was held as scheduled, since neither party has advised this court otherwise.
We decline to dismiss the petition as moot since the issue raised is one that is capable of repetition yet may evade review, and because the case presents an important issue as to which the trial courts and parties are in need of guidance.
The state has demonstrated that type of irreparable harm not remediable on appeal so as to warrant this court‘s certiorari review. See State v. Pettis, 520 So. 2d 250, 252 (Fla. 1988). The main purpose of the Act is to prevent “sexually violent predators” from being released from incarceration directly into the general population. See
The state argues that Judge Lynch departed from the essential requirements of law in ordering Kobel released until an adversarial hearing could be held, because Valdez did not compel that result.
In Valdez, three Ryce Act respondents filed habeas corpus petitions in which they argued, inter alia, that the state‘s failure to hold an adversarial probable cause hearing for a period of approximately nine months violated their right to due process. See 745 So. 2d at 1011. At the time they filed their petitions, the Ryce Act was codified at Chapter 916, Florida Statutes
394.915 Determination of probable cause; hearing; evaluation; respondent taken into custody; bail.
(1) When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person‘s incarcerative sentence expires.
(2) Upon the expiration of the incarcerative sentence and before the release from custody of a person whom the multidisciplinary team recommends for civil commitment, but after the state attorney files a petition under s. 394.914, the court may conduct an adversarial probable cause hearing if it determines such hearing is necessary. The court shall only consider whether to have an adversarial probable cause hearing in cases where the failure to begin a trial is not the result of any delay caused by the respondent. The person shall be provided with notice of, and an opportunity to appear in person at, an adversarial hearing. At this hearing, the judge shall:
(a) Receive evidence and hear argument from the person and the state attorney; and
(b) Determine whether probable cause exists to believe that the person is a sexually violent predator.
(3) At the adversarial probable cause hearing, the person has the right to:
(a) Be represented by counsel;
(b) Present evidence;
(c) Cross-examine any witnesses who testify against the person; and
(d) View and copy all petitions and reports in the court file.
(4) If the court again concludes that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person be held in an appropriate secure facility upon the expiration of his or her incarcerative sentence.
(5) After a court finds probable cause to believe that the person is a sexually violent predator, the person must be held in custody in a secure facility without opportunity for pretrial release or release during the trial proceedings.
In Valdez, this court noted that the state, in defending the constitutionality of the Act:
repeatedly emphasiz[ed] that in the typical case the procedures in the act will be carried out while the person is still incarcerated pursuant to the criminal sentence, and accordingly the absence of a probable cause hearing would not violate due process. Although that does seem to have been how the legislature contemplated that the Act would work, and under those circumstances there would be no due process problem created by the lack of an adversarial probable cause hearing, the Act did not work that way for these petitioners. Nor has the state cited any authority which would justify detaining these petitioners, who have
completed their sentences, beyond their release dates without an adversarial probable cause hearing.
Accordingly, this court held that “it constitutes a denial of due process to confine persons, who have already completed their sentences, without an adversarial probable cause hearing.” Id. In that situation, a probable cause hearing is “necessary” under
The court borrowed the five-day period from the Baker Act, where a probable cause hearing must be held within five days after a person is civilly confined for treatment of mental illness. Id. at n. 1 (citing
Read narrowly, Valdez simply directed that the Ryce Act respondents in that case were entitled to an adversarial probable cause hearing within five days of the date of the opinion. In Meadows v. Krischer, 24 Fla. L. Weekly D2576, D2577 n. 4, 763 So. 2d 1087, 1090 n. 4 (Fla. 4th DCA Nov. 17, 1999), we interpreted Valdez to hold that an adversarial hearing “must be held within five days upon request.” (Emphasis added). This was consistent with the concern of the Meadows panel that counsel be appointed for a Ryce Act respondent as early as possible.
In the typical situation contemplated by the statute, the state attorney will file a petition well before the expiration of an incarcerative sentence. Under
Valdez and Meadows did not discuss how the five-day rule would apply under the “immediate release” provision of the Ryce Act,4 which states:
394.9135 Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release.—
(1) If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of [DCFS] to be held in an appropriate secure facility. (2) Within 72 hours after transfer, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the ... team determines that the person does not meet the definition of a sexually violent predator, that person shall be immediately released. If the ... team determines that the person meets the definition of a sexually violent predator, the team shall provide the state attorney, as designated by s. 394.913, with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter.
(3) Within 48 hours after receipt of the written assessment and recommendation from the ... team, the state attorney, as designated in s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the state attorney, the person shall be immediately released. If a petition is filed pursuant to this section and the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.
(4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.
Since the state was proceeding under
Under the immediate release provisions of
It is difficult to see how an adversarial probable cause hearing will be meaningful if a Ryce Act respondent has no attorney prepared to litigate that issue.
For the foregoing reasons, we hold that in an immediate release situation under
In light of the foregoing, the lower court departed from the essential requirements of law in ordering Kobel released. On January 11, 2000, the same day as the petition was filed, Judge Moe found probable cause to believe that Kobel qualified for commitment. Once that finding was made, the judge was required to order that Kobel “be maintained in custody and held in an appropriate secure facility for further proceedings in accordance” with the Act, Part V of Chapter 394, Florida Statutes (1999).
This case demonstrates the difficulty courts have had in fashioning procedures on a case by case basis to implement the Act. As observed in Meadows, this case
underscore[s] the need for the Florida Supreme Court to appoint an appropriate committee to fashion comprehensive procedural rules for the implementation of substantive requirements of the Jimmy Ryce Act for those situations where the application of the Rules of Civil Procedure would be impracticable and where the statute is silent as to procedure.
24 Fla. L. Weekly at D2577 n. 4, 763 So. 2d at 1090 n. 4. Accord Sjuts v. State, 754 So. 2d 781 (Fla. 2d DCA 2000).
The petition for certiorari is granted and the trial court‘s order of January 27, 2000 ordering the petitioner‘s immediate release is quashed.
KLEIN and SHAHOOD, JJ., concur.