Butler v. State

923 So. 2d 566, 2006 WL 708574
District Court of Appeal of Florida·Decided March 22, 2006·No. 4D03-3095·Published·Cited by 4 cases

Opinion

923 So.2d 566 (2006)

Otis BUTLER, Appellant,
v.
STATE of Florida, Appellee.

No. 4D03-3095.

District Court of Appeal of Florida, Fourth District.

March 22, 2006.

*567 Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Otis Butler pled guilty to sexual battery on a person less than twelve years of age by a person eighteen years of age or older. Butler was sentenced to fifteen years in prison plus ten years' probation for the offense. After sentencing, the state moved to declare Butler a sexual predator pursuant to section 775.21, Florida Statutes (2002). In response, Butler moved the court to declare the statute unconstitutional, arguing that it violated his right to substantive due process. The trial court denied his motion and declared Butler a sexual predator. He appeals, again challenging the facial constitutionality of the statute. We affirm, holding the statute constitutional on the grounds raised by Butler.

Butler argues that section 775.21 is unconstitutional because it violates his substantive due process rights. Butler argues that there is a substantive due process violation because: 1) the statute places an unreasonable burden on a designee's liberty interests without affording that designee the opportunity to disprove his or her dangerousness; and 2) the statute establishes an irrebuttable presumption that certain offenders are to be designated as "sexual predators" without providing an opportunity for the designee to disprove his or her dangerousness. He asserts that the statute will affect his liberty interests by limiting his right to move and travel without notifying the state of all his movements, either in or out of the State of Florida. He claims that the sexual predator designation will also affect his liberty interests by negatively impacting his ability to find housing and employment.

The Florida Sexual Predators Act enumerates certain offenses and mandates that a person convicted of any such offense be designated a "sexual predator." See § 775.21(4)(a)(1), Fla. Stat. (2002) (sexual predator criteria); § 775.21(5), Fla. Stat. (designation procedure). Before designating an offender as a "sexual predator," the sole determination to be made by the trial court is whether that person has a requisite criminal conviction. See § 775.21(5)(a)(1), Fla. Stat. If a person has been convicted of any qualifying offense, the court must designate the offender as a "sexual predator," and he or she is subject to the Act's requirements.

Once an offender has been designated a "sexual predator," the registration and public notification requirements of the Act are triggered. See § 775.21(6) & (7), Fla. Stat. (2002). An offender who is not in custody must, within forty-eight hours of establishing temporary or permanent residence in Florida, register with the Department of Law Enforcement or, alternatively, the sheriff's office, and with the Department of Highway Safety and Motor Vehicles. See § 775.21(6)(a), (e), & (f), Fla. Stat. The definition of "temporary residence" includes any place where the sexual predator may reside for a period of four or more days in any month. See *568 § 775.21(2)(g), Fla. Stat. Upon registration, an offender must provide his or her name, age, race, sex, date of birth, height, weight, hair and eye color, a photograph, address of legal residence, address of any current temporary residence, "a brief description of the crime or crimes committed by the offender," and genetic material. See § 775.21(6)(a)1. & 2., Fla. Stat. If an offender plans to move out-of-state, he or she must inform the Department of Law Enforcement at least forty-eight hours before leaving. See § 775.21(6)(i), Fla. Stat. All of this registration information must be updated by the offender for the duration of his or her life. See § 775.21(6)(l), Fla. Stat. Failure to comply with these registration requirements is a third-degree felony. See § 775.21(10)(a), Fla. Stat. Additionally, the Act prohibits specific offenders from working "at any business, school, day care center, park, playground, or other place where children regularly congregate . . . ." § 775.21(10)(b), Fla. Stat.

The statute contains a statement of legislative findings and intent, which include the following:

(a) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual 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 sexual 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 sufficient justification to implement a strategy that includes:
. . . .
(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.

§ 775.21(3), Fla. Stat. (emphasis added).

In Milks v. State, 894 So.2d 924 (Fla. 2005), our supreme court concluded that the Act satisfied procedural due process requirements, but left open the issue of whether the statute violated substantive due process. Id. at 928, n. 5. This court in Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003), determined that the Act did not violate substantive due process. There, Reyes had claimed that the registration requirements under the Act violated his right to privacy under article I, section 23 of the Florida Constitution. We held that the stated purpose of the Act was sufficiently compelling to warrant an intrusion on privacy, and we referred to the statutory language quoted in this opinion.

The Eleventh Circuit made a more thorough analysis of the registration restrictions in Doe v. Moore, 410 F.3d 1337 (11th Cir.2005). While there the court was considering the registration restrictions of the sexual offender statute, rather than the sexual predator statute, they are mainly the same in both statutes.[1]

*569 The court explained the required analysis of a substantive due process claim under federal law:

We must analyze a substantive due process claim by first crafting a "careful description of the asserted right." [Reno v.] Flores, 507 U.S. [292] at 302, 113 S.Ct. [1439] at 1447 [123 L.Ed.2d 1 (1993)]; accord [Washington v.] Glucksberg, 521 U.S. [702] at 720-21, 117 S.Ct. [2258] at 2268 [138 L.Ed.2d 772 (1997)].

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Butler v. State, 923 So. 2d 566, 2006 WL 708574 (Fla. Ct. App. 2006).

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