If you are charged with a sex offense in Florida and the offense involves a victim 15 years old or younger, and you are 18 years old or older, you may be subject to the Jessica Lunsford Act. The Jessica Lunsford Act (“JLA”)[i] applies to certain offenses[ii] involving an accused who is 18 years or older and a victim who is 15 years or younger. Contrary to popular belief, JLA does not apply to sex offenses in general unless the age requirements are met. To qualify, the new offenses must be committed after 1 September 2005 to be subject to the provisions of JLA. One of the main, onerous conditions is mandatory electronic monitoring at the defendant’s expense.
During the plea, a judge will inquire about the following:
I understand if I plead guilty or nolo contendere to qualifying sexual offense, or if I have been previously convicted of such an offense or if I have been designated a sexual predator, I will be subject to mandatory electronic monitoring pursuant to section 948.30(3), Florida Statutes.
Certain prior offenses may be subject to the provisions of JLA under various different scenarios. The JLA may also apply to persons deemed “Sexual Predators” and/or “Sexual Offenders” here or in any other jurisdiction. The practical problem is this: trial courts, probation offices, and prosecutors often get misapply this sanction and the unsuspecting defendant ends up being electronically monitored under JLA when JLA does not apply.
JLA only applies if (A) the new criminal offense involves a victim who is 15 years or younger at the time of the offense, (B) the new offense was committed on or after 1 September 2005, and (C) the accused is 18 years or older or the accused has a prior offense that qualifies or the accused is a “sexual predator” or the accused is a “sexual offender.”[iii] If the victim is 16 or older, the provisions of this act do not apply.[iv]
JLA also created new requirements for reporting and keeping track of existing sex offenders and predators. It created enhanced penalties for tampering or otherwise damaging court-ordered electronic monitoring equipment. It created background screening procedures and protocols for all contract personnel who are permitted on school grounds and have access to the students.[v]
JLA also increased the penalty for a lewd or lascivious molestation of a child under 12 to a life felony with a 25-year mandatory minimum when the defendant is 18 years or older. Additionally, if the offender is released because his/her prison sentence has ended or released to serve community supervision, JLA may require mandatory electronic monitoring for the offender’s natural life.
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 office 24/7/365 for a free consultation or visit on the web www.candelalawfirm.com for further information.
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[i] The “Jessica Lunsford” Act, Ch. 2005-28. House Bill No. 1877. Sometimes referred to as “JLA” There is no specific code section for this act. For example, the “Jimmy Ryce Act” can be located at §394.910 et seq. By design, the JLA amends many different code sections already enacted. The act took effect on 1 September 2005.
[ii] A chart of the offenses that JLA applies to following offenses in Florida:
775.21(6)(g)3 Sexual predator who remains at a permanent residence after reporting his or her intent to vacate
775.21(6)(j) Sexual predator who indicates his or her intent to reside in another state or jurisdiction and later decides to remain in this state
775.21(6)(i) Sexual predator who intends to establish a residence in another state or jurisdiction shall report in person to the sheriff within 48 hours before the date he or she intends to leave
775.21(10)(a) Sexual predator failure to register
775.21(10)(b) Sexual predator who works, whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate
794.011(2)(a) Capital sexual battery -a person 18 years or older who commits a sexual battery upon, or in an attempt to commit sexual battery injuries the sexual organs of, a person less than 12 years of age
794.011(2)(b) A person less than 18 years or older who commits a sexual battery upon, or in an attempt to commit sexual battery injuries the sexual organs of, a person less than 12 years of age
794.011(3) Sexual battery uses or threatens to use a deadly weapon
794.011(4)(a) Sexual battery, physically helpless to resist
794.011(4)(b) Sexual battery, coerces by threatening to use force or violence
794.011(4)(c) Sexual battery, coerces by threatening to retaliate against the victim
794.011(4)(d) Sexual battery, victim drugged
794.011(4)(e) Sexual battery, victim is mentally defective
794.011(4)(f) Sexual battery, victim is physically incapacitated
794.011(4)(g) Sexual battery (offender is a law enforcement officer)
794.011(5) Sexual battery injury not likely
794.011(8)(a) Sexual battery, familial or custodial authority, solicitation
794.011(8)(b) Sexual battery, familial or custodial authority, engaging
794.0235 Failure to comply with medroxyprogesterne acetate (MPA) to persons convicted of sexual battery (chemical castration)
794.05 Unlawful sexual activity with a minor
794.065 Unlawful place of residence for persons convicted of certain sex crimes (victim less than 16) (1000-foot rule)
800.04(4) Lewd or lascivious battery (engaging or enticing)
800.04(5) Lewd or lascivious molestation
800.04(6) Lewd or lascivious conduct (intentionally touches or solicits)
827.071(2) Sexual performance by a child (engaging or inducing)
827.071(3) Sexual performance by a child (promoting)
827.071(4) Possession of child pornography
847.0145(1) Selling or buying of minors (sexually explicit conduct)
847.0145(2) Selling or buying of minors (purchasing minors)
[iii] JLA affects the scoring level of certain offenses. It also may increase the ultimate penalty. If you are charged with first degree lewd and lascivious molestation, then you may be subject to a twenty-five (25) year mandatory minimum penalty. There are different reporting requirements as well that must be considered. There also may be mandatory electronic monitoring.
[iv] Unfortunately, there are attorneys who do not handle JLA cases routinely and have not properly familiarized themselves with under what circumstances these sanctions might apply. In some cases, there are defendants being electronically monitored that are not eligible under this act for monitoring. In this regard, their attorneys failed them by not properly objecting and/or understanding when the JLA act applies and when it does not.
[v] https://www.volusiasheriff.org/resources/jessica-lunsford.stml and http://www.hardee.k12.fl.us/?PN=Pages&SubP=Level1Page&L=2&DivisionID=20774&DepartmentID=23989&PageID=32029&ToggleSideNav=ShowAll