Therrien v. State

914 So. 2d 942, 2005 WL 2779476
CourtSupreme Court of Florida
DecidedOctober 27, 2005
DocketSC03-2219
StatusPublished
Cited by19 cases

This text of 914 So. 2d 942 (Therrien v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Therrien v. State, 914 So. 2d 942, 2005 WL 2779476 (Fla. 2005).

Opinion

914 So.2d 942 (2005)

John Richard THERRIEN, Petitioner,
v.
STATE of Florida, Respondent.

No. SC03-2219.

Supreme Court of Florida.

October 27, 2005.

*943 Charles V. Peppler, Pensacola, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Tallahassee Bureau Chief, Criminal Appeals, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, FL, for Respondent.

PARIENTE, C.J.

In this case we decide whether a person may be designated a sexual predator, which results in lifetime registration and public notification requirements as well as employment restrictions, when the offense triggering the designation became a qualifying offense for sexual predator status only after the person was sentenced. The First District Court of Appeal concluded that all the statutory consequences of sexual predator designation, including the lifetime employment restrictions in section 775.21(10)(b), Florida Statutes (2000), could be imposed under these circumstances without a hearing on the defendant's future dangerousness. The First District further held that retroactive application did not violate the constitutional right to due process of law, but certified a question of great public importance regarding the statute's constitutionality. See Therrien v. State, 859 So.2d 585, 588 (Fla. 1st DCA 2003).[1]

We have jurisdiction pursuant to article V, section (3)(b)(4) of the Florida Constitution, which governs certified questions.[2]*944 We also have jurisdiction pursuant to article V, section (3)(b)(3) of the Florida Constitution because the district court expressly declared section 775.21(10)(b) constitutional as applied. Although the First District addressed the constitutional issue, we decide this case on the narrower grounds of statutory construction. See Metro. Dade County Transit Auth. v. State Dep't of Highway Safety & Motor Vehicles, 283 So.2d 99, 101 (Fla.1973) (refraining from deciding constitutional issues in case where decision "turns on matters of statutory construction"). We conclude that section 775.21, Florida Statutes (2000), does not authorize imposition of a sexual predator designation on a defendant based on a predicate offense that did not qualify the defendant for sexual predator status at the time of sentencing. Because this resolution makes it unnecessary to decide whether a procedural due process violation results from the retroactive imposition of the employment restriction without a hearing on future dangerousness, we decline to answer the certified question.

FACTS AND PROCEDURAL HISTORY

The State charged John Richard Therrien with sexual battery and lewd and lascivious assault based on acts allegedly committed upon a nine-year-old girl in November 1996, when Therrien was sixteen. He was prosecuted as an adult. In August 1997, Therrien pled nolo contendere to the lesser included offense of attempted sexual battery by a person under eighteen on a person under twelve and to the lewd and lascivious assault count as charged. Both crimes were second-degree felonies. See §§ 777.04(4)(c), 794.011(2)(b), 800.04, Fla. Stat. (1995). The trial court withheld adjudication of guilt on both counts and imposed a sanction of probation for five years, conditioned on a county jail sentence of eleven months and fifteen days, which was suspended.[3]

The offenses to which Therrien pled nolo contendere did not qualify him as a sexual predator under the Florida Sexual Predators Act (FSPA) either when the offenses were committed or when Therrien was sentenced. See § 775.21(4)(c), Fla. Stat. (Supp.1996). After Therrien's plea and sentence, the Legislature amended the FSPA to incorporate as qualifying offenses any attempt to commit a capital-, life-, or first-degree-felony violation of chapter 794, making attempted sexual battery by a person under eighteen on a person under *945 twelve an FSPA-qualifying offense. See ch. 98-81, § 3, at 591, Laws of Fla., codified at § 775.21(4)(c)(1)(b), Fla. Stat. (Supp.1998). Another amendment made any violation of section 800.04 a qualifying offense for the FSPA. See ch. 2000-207, § 1, at 2052-53, Laws of Fla., codified at § 775.21(4)(a), Fla. Stat. (2000).

In October 2000, more than three years after his sentencing hearing, the State sought to have Therrien designated a sexual predator under the amended FSPA. In a trial court pleading opposing the sexual predator designation, Therrien's counsel represented that Therrien had "completed probation in an exemplary manner and does not pose the threat for which the Florida Sexual Predator's Act was enacted."[4] The trial court granted the State's request and issued an order designating Therrien a sexual predator. Pursuant to the requirements of section 775.21, the order required Therrien to register with the Department of Corrections, report to the Department of Highway Safety and Motor Vehicles to obtain a new photo identification, and notify the State within 48 hours of any change of address. The order specified that day care centers and schools within a one-mile radius of Therrien's residence shall be notified of his presence, and that an Internet record of his sexual predator status shall also be maintained and be available to the public. The order further specified criminal sanctions for failure to register or provide notification of change of residence, and for working "whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate."

The First District rejected Therrien's constitutional claim that due process precluded retroactive application of the FSPA in this case and affirmed the sexual predator designation. See Therrien, 859 So.2d at 587. Neither the trial court nor the First District addressed Therrien's argument that because he did not qualify for sexual predator designation when he was sentenced, the subsequent expansion in qualifying offenses did not apply to him. In dissent, Judge Benton, quoting from one of Therrien's briefs, stated that Therrien's "nolo contendere plea—which might, after all, have been a plea of convenience— to charges of misconduct alleged to have taken place six years ago should not deprive him of the opportunity `to show that he is not a danger to society ..., that he is married and a father, and that he is living a normal, productive life as a citizen of Florida.'" Id. at 592-93 (Benton, J., dissenting).

ANALYSIS

Statutory construction is a question of law. BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003). In construing a statute, our duty is to effectuate legislative intent, which is determined primarily from the language of the statute. See State v. Rife, 789 So.2d 288, 292 (Fla. 2001). Where the language of a statute is clear and unambiguous and conveys a definite meaning, we construe it accordingly, and need not resort to additional rules of construction. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

Therrien was declared a sexual predator based on his convictions of crimes defined by Florida law. The provisions of the FSPA governing offenders such as Therrien concern sentencing for a "current offense." Section 775.21(4)(a), Florida Statutes (2000), provides that "[f]or a current offense committed on or after October 1, *946 1993, upon conviction, an offender shall be designated as a `sexual predator' under subsection (5)" if the felony is one of a number of specified crimes.

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