X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Florida state law requiring sexual predators to register with law enforcement was tossed out Wednesday by a Miami appeals court that ruled it violates the constitution by stigmatizing defendants without due process. In Espindola v. State, a three-judge panel of the 3rd District Court of Appeal unanimously decided that felons convicted of sexual crimes should be granted a hearing before being classified as sexual predators. The Florida Sexual Predator Act sets up no such procedure; instead, convicted felons of certain types of crimes are automatically classified as “sexual predators.” The court’s ruling follows a nationwide trend toward overturning sexual predator registration laws that do not provide for hearings to determine whether a defendant is a threat to the community before requiring him to register as a sexual predator. Because the 3rd District Court of Appeal is the only appellate court to have heard a case on the matter, its decision applies to the entire state. The decision affects roughly 2,500 sexual predators now registered in Florida. “Every appellate court that has considered this issue nationwide has found the same way,” said state Assistant Public Defender John Morrison, who argued the appeal on behalf of Ferman Espindola. “The court said you can’t take away civil liberties without due process. You have to conduct a hearing to determine whether a person is actually dangerous.” Other states that have reached a similar conclusion include New York, Connecticut, Massachusetts, Michigan, Alabama and Hawaii. “The state supreme court could take the case,” Morrison said. “But for now, this should have statewide precedent.” The attorney general’s office did not return calls for comment. Under the Florida Sexual Predator Act, defendants qualify as sexual predators when convicted of crimes such as sexual battery of a physically incapacitated victim or sexual battery of a minor. Once convicted, a defendant is automatically classified as a sexual predator. The court has no discretion. Those classified as predators must register with the state Department of Law Enforcement and the Department of Motor Vehicles. Law enforcement officials then post their pictures on the Internet and notify the community of the individual’s presence. Local police are also required to alert every day-care center and school within one mile of the sexual predator’s residence. The Florida Sexual Predator Act prohibits offenders from working anywhere that places them in contact with children and requires them to notify authorities whenever they move. The requirements are in effect for life. Failure to comply is a third-degree felony. The “branding” nature of public notification under the Sexual Predator Act potentially subjects defendants to loss of employment, social ostracism, harassment and even violence, the 3rd District Court of Appeal said in its ruling. To automatically impose such limitations on a person’s liberties is a clear violation of due process, the court ruled. “As several courts of other jurisdictions have done before us, we find that this total failure to provide for a judicial hearing on the risk of the defendant’s committing future offenses makes it violative of procedural due process, and therefore unconstitutional,” the court said in its opinion. Judges James Jorgenson, Gerald Cope and Melvia Green decided the case. In the underlying case, Ferman Espindola, 23, of Coral Gables, Fla., pleaded guilty to sexual battery of a physically incapacitated victim in May 2002. He was sentenced to a year of house arrest followed by four year’s probation. Espindola admitted that he and a co-defendant had sex with a woman who became unconscious after a drug was slipped into her cocktail while at a South Beach district nightclub in Miami. According to court documents, however, Espindola was also drugged during the alleged attack because he took sips of the victim’s drink. The case against the co-defendant, 23-year-old Yhir Jester Nino of Miami Beach, Fla., is pending. He faces the same sexual battery charge as Espindola, but is accused by prosecutors of being the one who slipped the drug into the woman’s drink. The state offered Espindola a plea deal in exchange for his testimony against Nino. Despite the plea deal, however, the underlying offense automatically classified Espindola as a sexual predator and subjected him to the public notification requirements of the Sexual Predator Act. “This case is exactly why the registration is just overly draconian and abusive,” said Charlie Kaplan, a partner at Kaplan & Singhal in Fort Lauderdale, Fla., who often defends sex crime cases. “He could have been a victim as well, who got drugged by the co-defendant. If we’re going to ruin a person’s life, he should have the right to raise a defense before we do it.” Under the Jimmy Ryce Act, the state can detain sex offenders for involuntary treatment after completion of their criminal sentences. But Jimmy Ryce defendants go through civil trials before they are designated as repeat offenders in need of commitment, Kaplan noted. The Jimmy Ryce Act has been challenged with similar due process claims and on the grounds that it violates prohibitions against ex post facto and double jeopardy. But the Florida Supreme Court upheld the constitutionality of the law in October. The high court ruled that the Ryce provisions do not violate due process rights because the state carries the burden at trial of proving by clear and convincing evidence that a person’s mental condition requires confinement.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.