Gerardo v. State

383 So. 2d 1122, 1980 Fla. App. LEXIS 16155
CourtDistrict Court of Appeal of Florida
DecidedMay 14, 1980
DocketNo. 79-1033
StatusPublished
Cited by3 cases

This text of 383 So. 2d 1122 (Gerardo v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerardo v. State, 383 So. 2d 1122, 1980 Fla. App. LEXIS 16155 (Fla. Ct. App. 1980).

Opinion

HOBSON, Acting Chief Judge.

The court consolidated two appeals from final judgments convicting appellant of three counts of sexual battery and two counts of burglary. The appellant assigns as error: 1) the trial court’s failure to certify him as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1977); and 2) the trial court’s imposition of sentences in excess of the statutory maximum for the three sexual battery charges.

Section 917.14, Florida Statutes (1977), provides for an examination and hearing in the circuit court to determine whether a defendant is a mentally disordered sex offender:

(1) If a defendant has been convicted of or has pleaded guilty or no contest to an offense or attempted offense in a current prosecution, the court may defer sentencing and certify him'for a hearing and examination in the circuit court to determine whether he is a mentally disordered sex offender.
(2) The court may certify a defendant under subsection (1) on its own motion, oh motion by the State Attorney or the defendant, or on application by affidavit of the defendant.

Under Sections 917.14 through 917.20 the court appoints not less than two experts to make personal examinations of the defendant. These experts make a written report to the court including all facts necessary to assist the judge in passing sentence on or committing the defendant. The court then holds a hearing to determine whether the defendant is a mentally disordered sex offender. The court or the parties- may call the appointed .experts, and the parties may cross-examine them in the same manner as any other witness. Additional witnesses may be called to give material testimony. If the court finds that the defendant is a mentally disordered sex offender it must commit him to the custody of the Department of Health & Rehabilitative Services for care, treatment and rehabilitation. The department is periodically required to file a [1124]*1124report describing treatment received and a diagnosis of the offender’s current condition. Within sixty days of receipt of this report the court must set a hearing date. If the court determines the offender is still dangerous, it orders his return for further treatment. However, if the court finds the department has exhausted all treatment for the offender or that he has improved to the extent he no longer meets the definition of an offender, the court orders him discharged from the department’s custody. Upon his discharge, criminal proceedings recommence. If the court finds the offender has been successfully rehabilitated by the treatment program, it may place the offender on probation. If the court, however, finds the offender continues to present a danger to others it may sentence him.

The purpose of Chapter 917 appears to be two-fold. Initially, it provides treatment for a narrowly defined class of sex offenders who, upon release after serving a term of imprisonment without treatment, are likely to continue to commit sex crimes. This provision recognizes that for some offenders institutional treatment may be instrumental in their rehabilitation, while conventional imprisonment will not. In addition, this statute requires the treatment to be prior to sentencing. Thereafter, the trial judge uses the department’s report to decide whether to sentence the defendant, place him on probation, or recommit him to the department’s custody for further treatment. While certification is within the court’s discretion, the court’s failure to certify a defendant who makes a strong, showing that he meets the qualifications constitutes an abuse of discretion. Section 917.-13(1) states:

(1) A ‘mentally disordered sex offender’ or ‘offender’ is a person who:
(a) Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution;
(b) Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and
(c) Is likely to commit further sex offenses if permitted to remain at liberty.

The defendant in this case meets all three qualifications because: he was convicted of sexual battery, the reports of an institution where he received treatment confirmed his mental disorder, and a court-appointed psychiatrist stated that if he were released without treatment he would be likely to commit similar crimes.

This statute provides the trial judge with assistance in determining the proper disposition of a defendant who has the propensity to commit a crime which the legislature determined both to involve a high rate of recidivism without treatment and be highly treatable. The legislature found that the trial judges needed professional medical assistance in this determination. Because the defendant could be released from prison, making treatment to prevent repeat offense important, and because the defendant’s mental condition and susceptibility of treatment are not readily determinable by the trial judge as the record reflects, this is an appropriate case for invoking the Chapter 917 procedure. Accordingly, the trial judge abused his discretion in failing to follow the statutory procedure.

In Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978), the defendant alleged the lower court erred by refusing to follow Chapter 917 procedure. There, the only evidence that the defendant’s disorder came within the statutory definition of a mentally disordered sex offender was the testimony of one psychiatrist. The appellate court, on the basis of the psychiatrist’s recommendation, concluded that the trial court’s failure to certify the defendant was an abuse of discretion. Hendricks was recently approved by this court in Rosier v. State, 374 So.2d 1041 (Fla. 2d DCA 1979), in which we held that where the defendant makes a strong and unrebutted showing that he meets the qualifications, the trial judge must certify him pursuant to Chapter 917. In Rosier, the strong showing consisted of two reports, one by a psychiatrist, the other by a psychologist, each of whom stated that the defendant was a mentally disordered sex offender. In the instant case the court-[1125]*1125appointed psychiatrist, Dr. Walter E. Afield, stated that the appellant was

on the borderline of meeting the Florida Statutes of Sex Offenders. By history, he does meet those statutes. He has had a history of severe emotional problems in the past and still has them and needs treatment. . . Incarceration without treatment would be a mistake.

The report also stated:

Clearly he does have some sexual problems . . ..In terms of a future disposition, once the legal situation is resolved this young man should be in a treatment situation. He could qualify under the Statutes for the Florida Sex Offender, Statute 917 . .. The difficulty is that this man will be out again in the future and without treatment he would become a problem.

The reports of the psychiatrist and the Hempstead Correctional Institution established the appellant’s mental disorder and the unrebutted information in these reports suggests his propensity to commit sex offenses. Therefore, the appellant should be certified and examined by two psychiatrists and on the basis of their testimony the trial judge should decide whether the appellant is a mentally disordered sex offender.

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Related

Sullivan v. State
413 So. 2d 152 (District Court of Appeal of Florida, 1982)
Jackson v. State
401 So. 2d 870 (District Court of Appeal of Florida, 1981)
Durbin v. State
385 So. 2d 172 (District Court of Appeal of Florida, 1980)

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Bluebook (online)
383 So. 2d 1122, 1980 Fla. App. LEXIS 16155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerardo-v-state-fladistctapp-1980.