Victor Villanueva v. State of Florida

200 So. 3d 47, 41 Fla. L. Weekly Supp. 319, 2016 Fla. LEXIS 1428, 2016 WL 4168765
Supreme Court of Florida·Decided July 7, 2016·No. SC13-1828·Published·Cited by 18 cases

Opinions

QUINCE, J.

Victor Villanueva seeks review of the decision of the Third District Court of Appeal in Villanueva v. State, 118 So.3d 999 (Fla. 3d DCA 2013), on the ground that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Arias v. State, 65 So.3d 104 (Fla. 5th DCA 2011), on the question of whether the trial court may order him to undergo mentally disordered sex offender (MDSO) therapy after a jury acquitted him of any sexual misconduct. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we find that the imposed probation condition is not limited to certain enumerated sex offenses but is invalid under this Court’s decision in Biller v. State, 618 So.2d 734 (Fla.1993).1 We therefore quash the decision of the Third District and remand this case to the trial court to modify the terms of Villanueva’s probation.

FACTS

The Third District summarized the facts of this case as follows:

Villanueva was charged with one count of lewd and lascivious molestation of a child older than twelve, but less than sixteen years old. The victim, Y.V., was Villanueva’s daughter, from whom he had become estranged by the time the girl was nine. When Y.V. was twelve, her family ran into Villanueva and arrangements were made for Villa-nueva to visit with Y.V. During the visit, Villanueva touched Y.V.’s breast. Y.V. testified that the touching of her breast was not accidental and lasted for several seconds. When she reacted, he laughed. Later, in Villanueva’s car, he again put his hand on her breast. Finally, while Y.V. was in a bathing suit2 at a swimming pool, he reached out and put his hand on her buttocks which caused her to exclaim, “hey, you touched me.” He apologized. Y.V. told her mother and, later, a teacher, who notified the police. Villanueva testified that he never touched Y.V.’s breasts.

Villanueva, 118 So.3d at 1001. The jury acquitted Villanueva of lewd and lascivious molestation but found him guilty of misdemeanor battery — a lesser included offense [49] of the molestation charge. Id. at 1001. The trial judge sentenced Villanueva to ninety days in jail followed by one year of probation. Id. As a special condition of that probation, the judge ordered Villa-nueva to complete MDSO therapy. See id. at 1000 & n. 1. As explained by the Third District, that term is not mentioned or defined in Florida’s statutory probation scheme, but the Third District assumed that the trial court was referring to sex offender therapy imposed pursuant to section 948.30(l)(c), Florida Statutes (2008). Id. at 1000 n. 1. That section sets forth additional conditions that must be imposed where the probationer has committed certain enumerated offenses and deems these additional conditions standard, not special, conditions for such probationers. While the charge of lewd or lascivious molestation is an enumerated offense within the statute, the crime for which Villanueva was convicted — misdemeanor battery — is not, ,

The trial judge explained his rationale for imposing the condition as follows:

I ordered ... [sex offender] therapy because he was found guilty of battery which is an illegal touching of someone else. That’s what he was charged with, was the illegal touching of someone else. They just didn’t find it to the same degree that the charging people did. Okay. That being the case, it was still an improper touching of his daughter, and he can acknowledge that in the sense of what it was and what he was found guilty of and go do the therapy, because he needs to learn that he can’t do that to children and family.

Id. at 1001. The judge also explained he was ordering the therapy “so that [Villa-nueva] can- get some insight into appropriate behaviors,” and specifically stated, “No, I want him to undergo MDSO therapy. It’s not an MDSO plea, it’s not an MDSO probation, just a condition of his probation.” The judge did not indicate under which statute he was ordering the therapy, but the probation order indicates that the therapy was imposed as a special condition of Villanueva’s probation, not as a standard condition.

Villanueva appealed the trial court’s decision, raising two related issues before the Third District: “(1) whether sex offender therapy as a condition of probation is restricted by statute to only certain enumerated sexual offenses; and (2) whether the imposition of that condition here comports with the. standards, governing probation announced by the Florida Supreme Court in Biller.” Id. at 1001. The district court determined, as to the first issue, that “while there are circumstances in which sex offender therapy is a statutorily-required condition of probation, sex offender therapy can still be imposed as a special condition of probation outside of those statutorily-required circumstances when the facts of the crime so warrant.” Id. at 1003. The court explained that section 948.30 “contains no language that prohibits these conditions from being selectively imposed on the probation” for crimes other than those enumerated in that section. Id. at 1002. In fact, the Third District noted instances in which courts and even the Legislature itself have already authorized “some of the individual conditions listed in section 948.30 to be imposed for offenses other than those listed in the statute.” Id. at 1002. The district court also noted that reading the statute as limiting imposition of the condition to only the enumerated offenses is inconsistent with the broad discretion given trial courts to determine what conditions will promote a probationer’s rehabilitation. Id. (citing §§ 948.03(2), 948.039, Fla. Stats. (2011)). Accordingly, the Third District found that “the statute does not prohibit a judge from selectively requiring sex offender therapy as a special condition of probation for oth[50] er offenses- where appropriate.” Id. at 1001 (emphasis added).

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Victor Villanueva v. State of Florida, 200 So. 3d 47, 41 Fla. L. Weekly Supp. 319, 2016 Fla. LEXIS 1428, 2016 WL 4168765 (Fla. 2016).

200 So. 3d 47 (Victor Villanueva v. State of Florida) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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