County Criminal Court: CRIMINAL LAW – Sentencing – Florida Statute 948.30, which provides for electronic monitoring of sex offenders, did not apply to appellee in this case, where he was placed on probation for DUI. Order of trial court affirmed.  Florida v. Watkins, No. CRC0602007CFAES ((Fla. 6th Cir. App. Ct. October 19, 2006).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

STATE OF FLORIDA,   

                        Appellant,

v.

 

PAUL MICHAEL WATKINS,                                               Case No: 0602007CFAES

 

                        Appellee.

_________________________/

 

 

ORDER AND OPINION

 

On June 11, 1992, Defendant,  plead no contest to a lewd and lascivious sexual offense (he was 18 at the time of the offense) on a child less then sixteen years of age. Defendant was required to register as a sexual offender.  On November 3, 2005, defendant was charged with driving under the influence and he plead no contest. He was adjudicated guilty and placed on one year probation and ordered to pay fines and court costs.  His license was suspended for six months and he was ordered to attend DUI school and complete 50 hours of community service.

Due to his sex offender status, the state requested the defendant be placed on a global positioning system pursuant to F.S. 948.30(3)©. The state argued “[t]he state’s position is it includes all periods of probation. . . . Anytime you are a registered sex offender and you’re put back on probation you’re required to get a GPS.”  The state further argued; “. . . It says electronic monitoring when deemed necessary by community control and/or his or her supervisor as deemed necessary if he’s on probation.  He’s going to be put on probation with this disposition.”  The court replied “[w]ell, don’t we have it to be deemed necessary by his probation officer ….I don’t think this calls for it. . . .”

The trial judge denied the state’s request, and this appeal followed. This Court affirms the decision of the trial court.

The statute at issue here is Florida Statute 948.30, titled “Additional terms and conditions of probation or community control for certain sex offenses” and reads, in part;

 

Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this section.

***
(
3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:
(a) Is placed on probation or community control for a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older;
(b) Is designated a sexual predator pursuant to s. 775.21; or
(c) Has previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older,

the court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision.


Florida Statute 948.30(3) is a criminal statute, and as such, must be strictly construed.   Clement v. State,  895 So.2d 446, 448 (Fla. 2d DCA 2005) (the rule of lenity requires that “[c]riminal statutes must be strictly construed, and when the language is susceptible to differing constructions, it must be construed most favorably to the accused.” §775.021(1), Fla. Stat. (1999)).  This Court finds that the statute applies to the immediate crime being a sex offense; not to “any crime.”  Specifically, not only does the title read “[a]dditional terms and conditions of probation or community control for certain sex offenses”, (emphasis added); the first paragraph sets out that “the conditions imposed to this section . . . shall be considered standard conditions for offenders specified in this section.” (Emphasis added). Finally, section (3) addresses the fact that this section applies to a probationer or community controllee whose crime was committed on or after September 1, 2005 and who is placed on probation or community control for certain violations. Thus, since the appellee in this case was placed on probation for DUI, this statute does not apply to him just because he had a previous conviction under Florida Statute 800.04.

 

ORDERED and ADJUDGED that the ruling of the trial court be AFFIRMED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of   __________, 2006.                                                            

                                                                                    ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                       

                                                                                    _____________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

Honorable Robert Cole

Matthew J. Ryan, A.S.A. 

Paul Michael Watkins, pro se