Higdon v. State

District Court of Appeal of Florida

Higdon v. State

884 So. 2d 495, 2004 Fla. App. LEXIS 14833, 2004 WL 2254186

District Court of Appeal of Florida·Decided October 8, 2004·No. No. 2D02-531·Published

Opinion

VILLANTI, Judge.

Moses Higdon appeals from an order finding him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999), the “Jimmy Ryce Act.” We affirm the commitment order. See Westerheide v. State, 831 So.2d 93 (Fla.2002). However, because Higdon argues that the jury was not properly instructed on the issue of volitional control, as required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), we certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003), and Freeze v. State, 861 So.2d 1234, 1235 (Fla. 2d DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

FULMER and SILBERMAN, JJ., concur.

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VILLANTI, Judge.

Moses Higdon appeals from an order finding him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999), the “Jimmy Ryce Act.” We affirm the commitment order. See Westerheide v. State, 831 So.2d 93 (Fla.2002). However, because Higdon argues that the jury was not properly instructed on the issue of volitional control, as required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), we certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003), and Freeze v. State, 861 So.2d 1234, 1235 (Fla. 2d DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

FULMER and SILBERMAN, JJ., concur.

Higdon v. State, 884 So. 2d 495, 2004 Fla. App. LEXIS 14833, 2004 WL 2254186 (Fla. Ct. App. 2004).

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Opinion

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