IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
DANIEL FETZER,
Petitioner,
v. Case No. 5D23-379 LT Case No. 16-2010-CA-3850-AX
STATE OF FLORIDA AND FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
Respondents.
________________________________/
Opinion filed March 10, 2023
Petition for Writ of Prohibition, Robert M. Foster, Respondent Judge.
Daniel Fetzer, Arcadia, pro se.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Respondent, State of Florida.
SaVannah J. Reading, Assistant General Counsel, of Department of Children and Families, Tallahassee, for Respondent, Department of Children and Families. LAMBERT, C.J.
Daniel Fetzer was convicted in 1985 in the Commonwealth of
Massachusetts of assault with intent to commit rape. Following his release
from prison, Fetzer eventually made his way to Florida, where, in 1997, he
was convicted and imprisoned on charges of child abuse, child neglect, and
escape.
On March 23, 2010, while Fetzer was still in the lawful custody of the
Florida Department of Corrections, the State filed a petition under sections
394.910–394.931, Florida Statutes (2009), commonly referred to as the
Jimmy Ryce Act, to have Fetzer found to be a sexually violent predator and
to commit him to the custody of the Department of Children and Families for
long-term control, care, and treatment.1 The same day, the circuit court
issued an ex parte order finding that probable cause exists to believe that
Fetzer is a sexually violent predator and directing that he be held in an
appropriate secure facility pursuant to section 394.915, Florida Statutes.2
Fetzer later executed a written waiver of his right to have his trial held within
Fetzer was scheduled to be released from custody four days later on 1
March 27, 2010. 2 The court held an evidentiary hearing the following month where it found probable cause that Fetzer should be committed as a sexually violent predator.
2 thirty days of the State’s filing of the petition. See § 394.916(1), Fla. Stat.
(2009) (providing that “[w]ithin 30 days after the determination of probable
cause, the court shall conduct a trial to determine whether the person is a
sexually violent predator”). Trial has not yet occurred.3
In 2022, Fetzer filed a “Second Amended Emergency Motion to
Dismiss Release and Discharge from Unlawful Civil Custody.” Fetzer argued
in his motion that the State’s 2010 petition to civilly commit him as a sexually
violent predator was barred under Florida’s statute of limitations codified at
section 95.11, Florida Statutes (2009), because it sought to enforce the
Massachusetts judgment entered against him almost twenty-five years
earlier. The State moved to strike Fetzer’s motion, responding that Fetzer
was relitigating the same motion that he had unsuccessfully filed in 2020.
The circuit court denied Fetzer’s motion.
Before this court is Fetzer’s petition requesting that we issue a writ of
prohibition to prevent the circuit court from hearing and considering the
State’s petition to involuntarily commit him as a sexually violent predator. 4
Fetzer primarily argues that whether the twenty-year, five-year, or four-year
3 Fetzer remains housed at the State of Florida Civil Commitment Center in Arcadia. 4 The order entered by the circuit court is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130.
3 statute of limitations period under sections 95.11(1), (2), or (3)(p) applies, the
time for the State to have brought an action on his 1985 Massachusetts
judgment expired long before it filed its petition in this case on March 23,
2010. For the following reasons, we deny the petition.
ANALYSIS—
Prohibition is considered an extraordinary remedy that is used to
prevent a lower court from acting without jurisdiction or in excess of its
jurisdiction. English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977); Taylor v.
State, 65 So. 3d 531, 533 (Fla. 1st DCA 2011) (citing Peltz v. Dist. Ct. of
Appeal, Third Dist., 605 So. 2d 865, 866 (Fla. 1992)). The writ is intended
to be “narrow in scope, to be employed with great caution and utilized only
in emergencies,” English, 348 So. 2d at 296, and “where there is no other
‘appropriate and adequate legal remedy.’” Sutton v. State, 975 So. 2d 1073,
1076 (Fla. 2008) (quoting S. Records & Tape Serv. v. Goldman, 502 So. 2d
413, 414 (Fla. 1986)).
Fetzer does not dispute that he was in the lawful custody of the
Department of Corrections at the time that the State initiated the instant civil
commitment proceedings. Resultingly, under Florida Supreme Court
precedent, the circuit court here has jurisdiction to adjudicate the State’s
commitment petition. See Larimore v. State, 2 So. 3d 101, 117 (Fla. 2008)
4 (holding that “an individual must be in lawful custody when the State takes
steps to initiate commitment proceedings pursuant to the Jimmy Ryce Act in
order for the circuit court to have jurisdiction to adjudicate the commitment
petition”). Fetzer has not disputed that he was also in the lawful custody of
the Department of Corrections on January 1, 1999, when the Jimmy Ryce
Act came into effect. 5 See State v. Atkinson, 831 So. 3d 172, 174 (Fla. 2002)
(holding that the Jimmy “Ryce Act is limited to persons who were in lawful
custody on its effective date”).
Further, though Fetzer long ago served his sentence for the assault
with intent to commit rape committed in Massachusetts, the circuit court is
not precluded from exercising jurisdiction because the Jimmy Ryce Act does
not require that the petition for involuntary commitment be filed while the sex
offender is in custody for the enumerated sex offense. See Ward v. State,
986 So. 2d 479, 480, 483–84 (Fla. 2008) (holding that a petitioner who was
convicted of rape in 1976 and released from prison in 1993 was nevertheless
subject to Jimmy Ryce Act involuntary civil commitment proceedings initiated
by the State in 2005 as the petitioner was in lawful custody at the time for
the crimes of burglary of an unoccupied conveyance and possession of
burglary tools); Hale v. State, 891 So. 2d 517, 522 (Fla. 2004) (holding that
5 See ch. 98-64, § 24, Laws of Fla.
5 the Jimmy Ryce “Act applies to all persons who are currently incarcerated
and who at some point in the past have been convicted of a sexually violent
offense”—the Act does not require that the current incarceration be for a
sexually violent offense).
As previously indicated, Fetzer’s challenge focuses on the trial court’s
denial of his motion to dismiss based on a statute of limitations defense.
While we question whether Florida’s statute of limitations even applies to a
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
DANIEL FETZER,
Petitioner,
v. Case No. 5D23-379 LT Case No. 16-2010-CA-3850-AX
STATE OF FLORIDA AND FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
Respondents.
________________________________/
Opinion filed March 10, 2023
Petition for Writ of Prohibition, Robert M. Foster, Respondent Judge.
Daniel Fetzer, Arcadia, pro se.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Respondent, State of Florida.
SaVannah J. Reading, Assistant General Counsel, of Department of Children and Families, Tallahassee, for Respondent, Department of Children and Families. LAMBERT, C.J.
Daniel Fetzer was convicted in 1985 in the Commonwealth of
Massachusetts of assault with intent to commit rape. Following his release
from prison, Fetzer eventually made his way to Florida, where, in 1997, he
was convicted and imprisoned on charges of child abuse, child neglect, and
escape.
On March 23, 2010, while Fetzer was still in the lawful custody of the
Florida Department of Corrections, the State filed a petition under sections
394.910–394.931, Florida Statutes (2009), commonly referred to as the
Jimmy Ryce Act, to have Fetzer found to be a sexually violent predator and
to commit him to the custody of the Department of Children and Families for
long-term control, care, and treatment.1 The same day, the circuit court
issued an ex parte order finding that probable cause exists to believe that
Fetzer is a sexually violent predator and directing that he be held in an
appropriate secure facility pursuant to section 394.915, Florida Statutes.2
Fetzer later executed a written waiver of his right to have his trial held within
Fetzer was scheduled to be released from custody four days later on 1
March 27, 2010. 2 The court held an evidentiary hearing the following month where it found probable cause that Fetzer should be committed as a sexually violent predator.
2 thirty days of the State’s filing of the petition. See § 394.916(1), Fla. Stat.
(2009) (providing that “[w]ithin 30 days after the determination of probable
cause, the court shall conduct a trial to determine whether the person is a
sexually violent predator”). Trial has not yet occurred.3
In 2022, Fetzer filed a “Second Amended Emergency Motion to
Dismiss Release and Discharge from Unlawful Civil Custody.” Fetzer argued
in his motion that the State’s 2010 petition to civilly commit him as a sexually
violent predator was barred under Florida’s statute of limitations codified at
section 95.11, Florida Statutes (2009), because it sought to enforce the
Massachusetts judgment entered against him almost twenty-five years
earlier. The State moved to strike Fetzer’s motion, responding that Fetzer
was relitigating the same motion that he had unsuccessfully filed in 2020.
The circuit court denied Fetzer’s motion.
Before this court is Fetzer’s petition requesting that we issue a writ of
prohibition to prevent the circuit court from hearing and considering the
State’s petition to involuntarily commit him as a sexually violent predator. 4
Fetzer primarily argues that whether the twenty-year, five-year, or four-year
3 Fetzer remains housed at the State of Florida Civil Commitment Center in Arcadia. 4 The order entered by the circuit court is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130.
3 statute of limitations period under sections 95.11(1), (2), or (3)(p) applies, the
time for the State to have brought an action on his 1985 Massachusetts
judgment expired long before it filed its petition in this case on March 23,
2010. For the following reasons, we deny the petition.
ANALYSIS—
Prohibition is considered an extraordinary remedy that is used to
prevent a lower court from acting without jurisdiction or in excess of its
jurisdiction. English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977); Taylor v.
State, 65 So. 3d 531, 533 (Fla. 1st DCA 2011) (citing Peltz v. Dist. Ct. of
Appeal, Third Dist., 605 So. 2d 865, 866 (Fla. 1992)). The writ is intended
to be “narrow in scope, to be employed with great caution and utilized only
in emergencies,” English, 348 So. 2d at 296, and “where there is no other
‘appropriate and adequate legal remedy.’” Sutton v. State, 975 So. 2d 1073,
1076 (Fla. 2008) (quoting S. Records & Tape Serv. v. Goldman, 502 So. 2d
413, 414 (Fla. 1986)).
Fetzer does not dispute that he was in the lawful custody of the
Department of Corrections at the time that the State initiated the instant civil
commitment proceedings. Resultingly, under Florida Supreme Court
precedent, the circuit court here has jurisdiction to adjudicate the State’s
commitment petition. See Larimore v. State, 2 So. 3d 101, 117 (Fla. 2008)
4 (holding that “an individual must be in lawful custody when the State takes
steps to initiate commitment proceedings pursuant to the Jimmy Ryce Act in
order for the circuit court to have jurisdiction to adjudicate the commitment
petition”). Fetzer has not disputed that he was also in the lawful custody of
the Department of Corrections on January 1, 1999, when the Jimmy Ryce
Act came into effect. 5 See State v. Atkinson, 831 So. 3d 172, 174 (Fla. 2002)
(holding that the Jimmy “Ryce Act is limited to persons who were in lawful
custody on its effective date”).
Further, though Fetzer long ago served his sentence for the assault
with intent to commit rape committed in Massachusetts, the circuit court is
not precluded from exercising jurisdiction because the Jimmy Ryce Act does
not require that the petition for involuntary commitment be filed while the sex
offender is in custody for the enumerated sex offense. See Ward v. State,
986 So. 2d 479, 480, 483–84 (Fla. 2008) (holding that a petitioner who was
convicted of rape in 1976 and released from prison in 1993 was nevertheless
subject to Jimmy Ryce Act involuntary civil commitment proceedings initiated
by the State in 2005 as the petitioner was in lawful custody at the time for
the crimes of burglary of an unoccupied conveyance and possession of
burglary tools); Hale v. State, 891 So. 2d 517, 522 (Fla. 2004) (holding that
5 See ch. 98-64, § 24, Laws of Fla.
5 the Jimmy Ryce “Act applies to all persons who are currently incarcerated
and who at some point in the past have been convicted of a sexually violent
offense”—the Act does not require that the current incarceration be for a
sexually violent offense).
As previously indicated, Fetzer’s challenge focuses on the trial court’s
denial of his motion to dismiss based on a statute of limitations defense.
While we question whether Florida’s statute of limitations even applies to a
Jimmy Ryce proceeding initiated when, as here, a defendant is in lawful
custody, see Anderson v. State, 93 So. 3d 1201, 1209 (Fla. 1st DCA 2012)
(Padovano, J., concurring) (“It is doubtful that the statute of limitations can
be applied at all in a Jimmy Ryce Act proceeding, as there is no point at
which the action can be said to have accrued.”), prohibition is not available
to review an allegedly erroneous order from the trial court rejecting an
affirmative defense in a civil proceeding based on the statute of limitations.
See Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So. 2d 1083, 1086 (Fla.
5th DCA 2007); Panagakos v. Laufer, 779 So. 2d 296, 297 (Fla. 2d DCA
1999). Stated somewhat differently, prohibition “was never designed to
prevent the erroneous exercise of an existing jurisdiction, or to be used as a
substitute for a writ of error or appeal.” State ex rel. Cacciatore v. Drumright,
156 So. 721, 723 (Fla. 1934).
6 Accordingly, based on the sparse record before us, the very limited
ground for relief asserted in the petition, and the extremely narrow scope of
a writ of prohibition, we deny Fetzer’s petition because, simply stated, the
circuit court is not acting without or in excess of its jurisdiction. In doing so,
we take no position as to whether Fetzer has other avenues available to him
either to obtain release or to otherwise bring this now-almost-thirteen-year
civil commitment proceeding to trial because the record before us is not
sufficiently developed to show that he is entitled to such relief. Cf. Morel v.
Wilkins, 84 So. 3d 226, 247–48 (Fla. 2012) (holding that an eight-year delay
prior to trial on the State’s involuntary civil commitment petition did not violate
the defendant’s right to due process where the defendant waived his right to
trial within thirty days, never reasserted his right to trial, and the delays in the
proceeding were attributable to the defendant).6
PETITION FOR WRIT OF PROHIBITION DENIED.
MAKAR and SOUD, JJ., concur.
6 The State has argued here, with some support in the record, that the lengthy delay in this case is attributable to Fetzer’s own actions in, among other things, specifically and repeatedly refusing to participate in numerous scheduled court proceedings.