Villanueva v. State

118 So. 3d 999, 2013 Fla. App. LEXIS 13015, 2013 WL 4436953
CourtDistrict Court of Appeal of Florida
DecidedAugust 21, 2013
DocketNo. 3D11-2023
StatusPublished
Cited by6 cases

This text of 118 So. 3d 999 (Villanueva 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
Villanueva v. State, 118 So. 3d 999, 2013 Fla. App. LEXIS 13015, 2013 WL 4436953 (Fla. Ct. App. 2013).

Opinion

LOGUE, J.

A jury found Victor Villanueva guilty of misdemeanor battery. On appeal, he challenges the trial court’s decision to impose on his probation a special condition that he undergo sex offender therapy.1 Although Villanueva was convicted only of simple battery, the facts in the record indicate that the non-consensual physical contacts underlying the battery involved the touching of a juvenile female’s breasts and buttocks. For this reason, we hold that the trial court could require therapy of this nature as a condition of probation in this case. In addition, we remand with di[1001]*1001rections for the trial court to correct two scrivener’s errors in the sentencing order.

FACTS AND PROCEDURAL BACKGROUND

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 Villanueva 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 suit 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. Villa-nueva testified that he never touched Y.V.’s breasts.

The jury acquitted Villanueva of the charge of lewd and lascivious molestation of a child, but found him guilty of the lesser included offense of misdemeanor battery. The trial judge sentenced Villa-nueva to one year of probation, subject to the special condition that Villanueva undergo sex offender therapy. The judge explained his reasoning for this 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.

The order also required Villanueva to serve ninety days in jail before the one year probation began and it stated that Villanueva had pled guilty, rather than been convicted at trial.

DISCUSSION

Sex Offender Therapy

Villanueva first challenges the portion of his sentence requiring him to undergo sex offender therapy as a condition of probation. His appeal in this regard raises two related issues: (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 v. State, 618 So.2d 734, 734-35 (Fla.1993). We address each issue in turn.

A. Is Sex Offender Therapy Restricted to Only Certain Sexual Offenses?

Villanueva first argues that sex offender therapy as a condition of probation is restricted by statute to certain enumerated sexual offenses. We are not persuaded. Even though a statute includes sex offender treatment as one of a roster of mandatory conditions of probation for certain specified sexual offenses, the statute does not prohibit a judge from selectively requiring sex offender therapy as a special condition of probation for other offenses where appropriate.

Section 948.30, Florida Statutes (2011), establishes the conditions for “sex offender probation.” It requires that, when granting probation to persons convicted of spe[1002]*1002cific sexual offenses,2 the court “must impose” certain conditions “in addition to all other standard and special conditions imposed.” § 948.30(1), Fla. Stat. (2011). One of these additional mandatory conditions is sex offender therapy. Others are a curfew, residency restrictions, prohibitions on contact with the victim or children (except as authorized by the court), prohibitions on working or volunteering at schools, a prohibition on viewing child pornography, prohibitions on accessing the internet under certain circumstances, a requirement to provide blood specimens, a requirement to pay restitution, submission to warrantless searches, submission to polygraph examinations, maintenance of driving logs, electronic monitoring in certain circumstances, and prohibitions on visiting schools and parks without prior approval. See § 948.30, Fla. Stat. (2011).

Section 948.30 reflects the clear intent of the Legislature that all of these conditions be imposed when persons convicted of the sexual offenses listed in the statute are granted probation. But it contains no language that prohibits these conditions from being selectively imposed on the probation for other crimes. Courts already have imposed some of the individual conditions listed in section 948.30 for offenses other than those listed in the statute.3 In addition, the Legislature itself authorizes some of the individual conditions listed in section 948.30 to be imposed for offenses other than those listed in the statute. See, e.g., §§ 948.014, 948.03(l)(o), Fla. Stat. (2011) (provide blood or other biological speei-mens); §§ 948.03(l)(f), 948.032, Fla. Stat. (2011) (pay restitution).

Moreover, reading such a restrictive inference into the statute runs contrary to the policy of the probation statutes, which encourage trial judges to exercise broad discretion in tailoring the probation conditions to a defendant’s rehabilitation. The probation statutes mandate certain conditions of probation for certain crimes, but otherwise recognize that trial judges have broad discretion to fashion conditions of probation that promote rehabilitation. See, e.g., § 948.03(2), Fla. Stat. (2011) (“The enumeration of specific kinds of terms and conditions [for probation] shall not prevent the court from adding thereto such other or others as it considers proper.”); § 948.039, Fla. Stat. (2011) (“The court may determine any special terms and conditions of probation.”).

We acknowledge that our sister courts have held that all of the conditions listed in the sex offender probation statute could not be imposed on persons who were convicted of a crime other than those crimes enumerated in the statute. Sturges v. State, 980 So.2d 1108, 1109 (Fla. 4th DCA 2008) (rejecting imposition of all the conditions “pursuant to section 948.30”) (original emphasis); Arias v. State, 65 So.3d 104 (Fla. 5th DCA 2011) (rejecting imposition of all of the conditions as a special condition). We believe that these cases are easily distinguished from the instant case because they did not address situations where the court selectively im[1003]*1003posed only one of the listed conditions, such as the sex offender therapy imposed here.

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Related

Victor Villanueva v. State of Florida
200 So. 3d 47 (Supreme Court of Florida, 2016)
Jared Snow v. State of Florida
157 So. 3d 559 (District Court of Appeal of Florida, 2015)

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Bluebook (online)
118 So. 3d 999, 2013 Fla. App. LEXIS 13015, 2013 WL 4436953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villanueva-v-state-fladistctapp-2013.