After consulting with your attorney, if you decide that entering a plea is your best option regarding your case, then there some basic understandings you should have regarding the standard felony plea in Florida. One of those understandings you must possess and understand, and that your attorney should be properly advising you about, is that if you choose to plead guilty to any felony, then there is the potential for involuntary civil commitment as a sexually violent predator under the “Jimmy Ryce” Act. This collateral consequence of the plea is non-negotiable. The omnibus act is named for nine-year-old child that was forcibly abducted, brutally raped, and unceremoniously murdered by Juan Carlos Chavez.[i]
During the plea colloquy[ii] with the judge, one of the areas that the judge will discuss with the pleading defendant is the potential consequences that could be imposed if the pleader qualifies. The form warns:
I understand that if I plead guilty or nolo contendere to a sexually violent offense or a sexually motivated offense, or if I have been previously convicted of such an offense, the plea may subject me to involuntarily civil commitment as a sexually violent predator upon completion of any prison sentence or jail sentence on this or any other case.
In a nutshell, the act is a civil commitment mechanism to indefinitely detain you to protect society from you when to be released from prison until there is a sufficient showing that you can re-enter society safely.[iii]
If you have been charged with a sexually motivated or qualifying sexual offense (as defined by the statute and usage), you may be subject to the “Jimmy Ryce” Act. Unfortunately, the legislature, responding the pressure from society, has pushed for tougher laws concerning the people committing sex offenses. The “Jimmy Ryce” Act is one of those laws which calls for specialized treatment for certain “sexual violent predators.”
In a traditional sense of constitutional criminal “due process,” an act like this makes little sense, but has become a necessary evil in never-ending battle to protect society from the scourge of sex offenses.[iv] In the sense of this act, if a defendant is convicted (adjudicated guilty) of certain sexually motivated or sexual offenses, he or she may be subject to immediate commitment by civil procedure which results a complete loss of their liberty as a “violent sexual predator.”
In some instances, if you are sentenced to prison, you could be committed right after you have completed your sentence, but prior to your release. In other words, when you complete your sentence, you will not be granted your freedom. Instead, you will be transported to the detention facility in Arcadia, Florida. The name is a matter of semantics. Since the commitment is completed under the guise of the criminal justice system, the facility, which is essentially a prison, is called a detention facility.
“Relax,” said the night man
“We are programmed to receive
You can check out any time you like
But you can never leave!”[v]
But wait… you can still get Ryced. For example, let’s say you are not sentenced to prison immediately, but sentenced to some type of community supervision. If you were to violate that community supervision, you could be committed at some later date after any prison sentence you might eventually serve. There is no way of knowing up front whether the State Attorney’s Office may seek this type of civil confinement after your prison sentence is completed. It is a total crap shoot.
This is especially important for you to understand in two circumstances. First, if the offense to which you are pleading is defined as a “sexually violent offense,”[vi] the offense and surrounding facts may qualify you for commitment under the act. On the other hand, if you have a prior conviction for a “sexually violent offense,” and pick up a new conviction for any offense (with the prior SVO), you may also be subject me to civil commitment and loss of your liberty upon your release from any prison sentence you might receive or might receive as a result of my present charges. There are multiple ways to end up being Ryced and your attorney needs to fully explain this specific consequence of your plea.
For instance, assuming arguendo that you were convicted years ago of a sex offense and that offense qualifies under the Ryce Act. Fast forward to the present, if you get arrested for felony petit theft and serve any prison time on the charge (either by plea or by trial), then you could be subject to the Ryce Act because of your prior conviction for a sex offense. And no, this is not ex post facto because the United States Supreme Court has said it is not (but it sure seems like it).
Civil commitment under the Ryce Act is not available to the run-of-the-mill felon (who does not have a qualifying offense). So, if you do not have any qualifying priors and are convicted by trial or plea of any general felony, then the Ryce Act cannot apply you. On the other hand, if the you are pleading to “sexually violent offense”[vii] or are pleading to some non-sexually violent offense but has a prior conviction for a “sexually violent offense,” then you may be subject to civil commitment.[viii] Again, there is no way to know at the time of the plea if you might be Ryced (unless the prosecutor says something about it).
The commitment procedure may be initiated shortly before your prison sentence ends and were to be released. At that time, all your records will be made available for review by the State. During this process, you will be asked for an interview by one or two psychiatrists or psychologists sent by the Florida Department of Children and Family Services (or a similar State agency) (“DCF”). The job of the psychiatrist(s) or psychologist(s) sent by the DCF is to make a report on whether they believe the defendant meets criteria and should be involuntarily committed as a “sexually violent predator” at the end of my prison sentence.
If, in the opinion of the examiners, they believe in their expert opinions that you pose a danger to the community if you are released from custody then the Act’s criteria is met. The report of the psychiatrist(s) or psychologist(s) will be sent to a special section of DCF and the State Attorney’s Office (“SAO”). In joint consultation, these agencies will decide whether they want to try to keep you confined by having you involuntarily committed to DCF for an indefinite period of time after the end of your prison sentence.
To continue with the commitment, the State must timely file a petition in civil court. The procedure is “quasi”[ix] criminal but follows the civil rules of procedure. In any such civil commitment proceeding, you have a right to a jury trial on the question of whether you continue to pose a danger to the community as a “sexually violent predator.” You have a right to a lawyer at this trial, and if he or she cannot afford one, the Court will appoint you one free of charge.
If the jury decides unanimously that you continue to pose a danger to the community, you will be immediately committed to a “secure facility” operated by DCF and segregated from patients not committed as sexually violent predators. The commitment may be indefinite and forever.[x] On the other hand, if the jury does not decide unanimously that you continue to pose a danger, but a majority of the jurors find that you should be committed, the SAO may try the case against you again (and again).[xi] In the second scenario, if you are not committed, you may face one or more retrials on the matter to determine if commitment is necessary.[xii]
As indicated above, a civil commitment proceeding operates vastly different that a criminal trial. There are no constitutional criminal guarantees other than “due process.” In these proceedings, the state must prove that you continue to be a danger to the community as a “sexually violent predator” by “clear and convincing” evidence. This high civil burden of proof is different from the criminal standard. “Clear and convincing” evidence is a high burden, but not nearly as high as the “beyond a reasonable doubt”[xiii] for a conviction in criminal court.
There is a glimmer of hope if you are civilly committed under this act. If you are committed, then you will be entitled to at least an annual review of your condition and status by the judge. If there is reason to believe that your condition has improved, then you will be entitled to the assistance of a lawyer and a non-jury trial before the judge on this issue. In this instance, the burden of proof shifts to you. In the non-jury trial, you will have the responsibility to convince the judge that you have improved or changed enough so that they are no longer a danger to the community as a “sexually violent predator” and should be ordered released.
Sex offenses are not like the garden variety felonies, especially in Florida. As such, there are not a lot of criminal defense attorneys that can properly represent you if you are charged with a sex offense. Many good attorneys understand the basics, but hardly understand all the nuances. Like anything else, if you find yourself charged with a sex offense, then you need the most experienced attorney you can afford to represent you. I am board-certified in criminal trial and have represented hundreds of persons charged with various serious sex offenses from capital sexual battery to lewd or lascivious acts to luring or enticing a minor to various others. I have also handled many appeals involving these specialized issues.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
Call Anthony Candela at (813) 417-3645 24/7/365 for a free consultation or visit on the web www.candelalawfirm.com for further information.
The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.
[i] Juan Carlos Chavez was executed on 12 February 2014. See www.miamiherald.com/news/state/article1960281.html
[ii] The “plea colloquy” is a fancy phrase that refers to the sworn question and answer between the judge and the pleading defendant. The question and answer session is conducted under the penalty of perjury (so you cannot lie to the judge).
[iii] Incidentally, there was no allegations that Juan Carlos Chavez had previously been convicted of any sexually motivated or sexually violent offenses.
[iv] The problem is quite literally that there is little to no anecdotal evidence to support the underlying premise behind the “Jimmy Ryce” Act and others like it. With that being said, there are those who claim to feel safer knowing that sex offenders or sex predators are indefinitely committed. The idea is aberrant to our free society. On the other hand, I am no advocating in favor of committing sexual offenses in any way, shape, or form, but indefinitely housing people who have completed their sentenced (their debts to society) to compel them into forced re-education camps sounds like something out of Vietnam following the end of the Vietnam War. Unfortunately, the trial court are often times completely transparent in their political views. In some instances, the trials are merely formalities. If not for the diligent and fair appellate courts reviewing Ryce cases, there might be a few more individuals simply rotting in the detention facility in Arcadia, Florida.
[v] Hotel California. Eagles. 1977.
[vi] See §394.912, Fla. Stat.
[vii] See §394.912, Fla. Stat.
[viii] Under the SVP (“Jimmy Ryce Act”), the phrase “sexually violent offense” may include: a conviction for “comparable offense” in another state or under federal law, and/or “any criminal act” which has been, or may be, found to be “sexually motivated.” In fact, the offense may have been utterly without any violence whatsoever (and in some cases completely consensual).
[ix] The term “quasi” means almost like; seemingly; apparently, but not really; resembling, but not actually. In this instance, “quasi-criminal” means it sort of resembles criminal but is not afforded all the same constitutional rights and procedures as a criminal defendant. See https://www.merriam-webster.com/dictionary/quasi
[x] Treatment options depend on the nature of the psycho-sexual illness, availability of professionals to treat, and the committee’s eagerness for treatment. Once committed, usually the only way out is through by willingly complying with the treatment and measurably demonstrating a willingness to rehabilitate.
[xi] Since the matter is civil and not criminal, the constitutional principle of double jeopardy does not apply.
[xii] The idea that the defendant could prevail mostly on this type of case at trial and then have the losing party immediately retry the matter seems aberrant to our justice system.
[xiii] The following list illustrates the different legal burdens from (7) highest to (1) lowest:
Beyond a reasonable doubt (99.9%);
reasonable doubt (90%);
clear and convincing (75%);
a preponderance or the greater weight (50.1% vs. 49.9%);
reasonable or articulable suspicion; and/or
a bare hunch or guess.