Morel v. Wilkins, etc.
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This case involved the application of Florida's Involuntary Civil Commitment of Sexually Violent Predators Act, 394.9135, Florida Statutes, commonly known as the Jimmy Ryce Act, to defendant, who had been detained by the State and awaiting a civil commitment trial pursuant to that Act since April 2002. The court held that (1) neither the Jimmy Ryce Act nor the Constitution entitled defendant to the treatment he sought as a noncommitted detainee; defendant failed to establish that the FCCC treatment program was constitutionally defective; and (3) because the delay in defendant's commitment trial had been made for tactical reasons at his own request, his detention did not result in a constitutional violation.
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Supreme Court of Florida
____________
No. SC10-2293
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RONALD MOREL,
Appellant,
vs.
DAVID E. WILKINS, etc.,
Appellee.
[March 8, 2012]
PER CURIAM.
This case involves an application of Florida‘s Involuntary Civil
Commitment of Sexually Violent Predators Act, commonly known as the Jimmy
Ryce Act, to Ronald Morel, who has been detained by the State of Florida and
awaiting a civil commitment trial pursuant to that Act since April 2002. After
nearly seven years of pretrial detention at the Florida Civil Commitment Center
(FCCC) in DeSoto County, Morel filed a pro se petition for a writ of habeas corpus
in the circuit court, seeking full access to the comprehensive sexual offender
treatment program (SOTP) made available only to those persons for whom
commitment orders have already been entered.
Following the circuit court‘s denial of his habeas petition, Morel appealed to
the Second District Court of Appeal. On appeal, the Second District certified to
this Court that the constitutional issues raised by the circuit court‘s judgment,
including questions regarding what was at that point an ―eight-year delay in
[Morel‘s] treatment and trial,‖ affected the proper administration of justice
throughout the state and required immediate resolution by this Court. In re
Commitment of Morel, 67 So. 3d 1062, 1064 (Fla. 2d DCA 2010). We accepted
jurisdiction pursuant to article V, section 3(b)(5) of the Florida Constitution and
relinquished jurisdiction to the Seventeenth Judicial Circuit Court for the purpose
of conducting an evidentiary hearing on Morel‘s claims in the court where his
Jimmy Ryce proceedings were pending. See Morel v. Sheldon, 59 So. 3d 1082
(Fla. 2011). 1
Jurisdiction has returned to this Court, and we now affirm the denial of
habeas corpus relief. We hold that (1) neither the Jimmy Ryce Act nor the
Constitution entitles Morel to the treatment he seeks as a noncommitted detainee;
1. Morel contemporaneously filed in this Court a motion requesting a stay
of his civil commitment trial that was to commence in the Seventeenth Judicial
Circuit Court. In our order of relinquishment, we granted Morel relief in part by
temporarily staying the civil commitment trial pending the resolution of factfinding that was to be conducted during the relinquishment period. See Morel, 59
So. 3d at 1083. After the relinquishment period ended, we lifted the temporary
stay and ordered Morel‘s civil commitment proceedings to move forward
immediately without any further delay. See Morel v. Satz, No. SC11-105 (Fla.
Sup. Ct. order filed Dec. 14, 2011).
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(2) Morel has failed to establish that the FCCC treatment program is
constitutionally defective; and (3) because the delay in Morel‘s commitment trial
has been made for tactical reasons at his own request, his detention did not result in
a constitutional violation. Despite our holding in this case, we emphasize that even
though Morel sought the delays in trial, neither the legislative scheme nor the
Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent
Predators (Jimmy Ryce Rules of Procedure) contemplate extended delay in a
detainee being brought to trial under the Jimmy Ryce Act.
Accordingly, we urge all trial courts to take immediate steps to ensure that
these cases are timely tried in accordance with the intent of the Legislature and
Jimmy Ryce Rules of Procedure. We refer this matter to the appropriate rules
committees to make recommendations as to whether Jimmy Ryce Rule of
Procedure 4.240 should be further amended.
I. BACKGROUND
In March 1996, Morel was sentenced in the Seventeenth Judicial Circuit
Court in Broward County to ten years‘ imprisonment following his adjudication of
guilt for several sexually violent offenses.2 While he was serving his sentence, the
2. Morel was convicted of two counts of sexual battery pursuant to section
794.011(5), Florida Statutes (1993), which criminalizes the ―sexual battery upon a
person 12 years of age or older, without that person‘s consent, [when] in the
process thereof [the offender] does not use physical force and violence likely to
cause serious personal injury.‖ Morel was also convicted of kidnapping.
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circuit court granted a postconviction motion that Morel filed, the result of which
reduced the term of his sentence by approximately three and half years and made
him immediately eligible for release.
Due to the nature of Morel‘s underlying criminal offenses, his eligibility for
release triggered his transfer from a Broward County jail to the custody of the
Department of Children and Family Services (DCF) on April 18, 2002, for a
determination of whether he should be subject to involuntary commitment as
meeting the definition of a ―sexually violent predator‖ under the Jimmy Ryce Act.
In accordance with the Act‘s immediate release provisions set forth in section
394.9135, Florida Statutes (2002), Morel was then transferred to the FCCC in
DeSoto County, which is located within the Twelfth Judicial Circuit.
While he was at the FCCC, Morel‘s release from custody was placed on a
seventy-two-hour hold in order for DCF‘s multidisciplinary team to evaluate
Morel, make a written assessment, and offer a recommendation to the state
attorney in Broward County regarding whether Morel should be committed as a
sexually violent predator. After an evaluation, two psychologists determined that
Morel met the criteria of being a sexually violent predator and that he required
intensive treatment before being released into the community. Four other members
of DCF‘s multidisciplinary team concurred with the psychologists‘ determination,
and the team issued its written recommendation and report.
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On April 23, 2002, upon receipt of the multidisciplinary team‘s report, the
state attorney filed a petition in the Seventeenth Judicial Circuit Court, alleging
that Morel met the criteria for commitment. That same day, the trial court issued
an ex parte order finding probable cause to believe that Morel was a ―sexually
violent predator‖ as defined in section 394.912, Florida Statutes (2002), and thus
―eligible for commitment,‖ and ordered DCF to hold Morel pursuant to section
394.915, Florida Statutes (2002).
At an April 29, 2002, hearing in the Seventeenth Judicial Circuit Court,
Morel was present and found to be indigent. Consequently, the circuit court
appointed the Office of the Public Defender to represent Morel, and an assistant
public defender was there to represent him. After consultation with counsel, Morel
agreed in open court to waive his right under section 394.916(1), Florida Statutes
(2002), to have a commitment trial held within thirty days of the court‘s probable
cause determination, and he executed a written waiver to the same effect.
For the reasons discussed in more detail below, after waiving the thirty-day
deadline in April 2002, Morel‘s Jimmy Ryce trial was delayed for nearly ten years.
During that time period, Morel remained a noncommitted, pretrial detainee in the
custody of DCF and housed at the FCCC amongst other detainees and committed
residents. As opposed to noncommitted detainees, committed residents, who have
been adjudicated as sexually violent predators, have access to the full range of
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comprehensive sexual offender treatment DCF offers through its independent
contractor, GEO Group, Inc. (GEO).3
On February 10, 2009, although represented by private counsel in his
ongoing civil commitment proceedings pending in the Seventeenth Judicial Circuit
Court, Morel filed a pro se emergency petition for habeas corpus in the Twelfth
Judicial Circuit Court, naming the Secretary of DCF as respondent. In his petition,
Morel primarily asserted that due to a policy excluding noncommitted detainees
from participation, DCF was unconstitutionally denying him full access to the
sexual offender treatment program. Morel claimed that because successful
completion of the treatment program is a prerequisite to a resident‘s release, DCF‘s
decision to refuse him complete access to the treatment program was impeding his
efforts to secure release from indefinite detention. As a remedy, Morel sought total
discharge from detention and dismissal of the State‘s civil commitment petition
with prejudice. Without conducting a hearing, the trial court entered an
unelaborated order denying Morel‘s habeas petition on April 1, 2009.
When Morel appealed the judgment of the Twelfth Judicial Circuit Court to
3. Since 2006, GEO has managed and operated the FCCC and its sex
offender treatment programs. Pursuant to section 394.9151, Florida Statutes
(2011), DCF ―may contract with a private entity or state agency for use of and
operation of facilities to comply with the requirements‖ of the Act. In 2006, DCF
replaced Liberty Behavioral Healthcare Corporation (Liberty) as the FCCC‘s
operator, and on July 1, 2006, DCF awarded the contract to GEO.
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the Second District, the district court was troubled by the undisputed eight-year
delay in Morel receiving treatment and proceeding to trial. See In re Commitment
of Morel, 67 So. 3d 1062, 1063-64 (Fla. 2d DCA 2010). The district court noted
that it lacked any information about the cause of such delay and observed that ―it is
not unusual for both the circuit court in DeSoto County and [the Second District
Court] to have no territorial jurisdiction over the forum in which the civil
proceeding is pending.‖ Id. at 1063. The Second District further observed that
although this case was ―an extreme example,‖ from its ―anecdotal experience, it
[was] not unique.‖ Id. at 1064. Although the Jimmy Ryce Act contemplates that
detainees will receive a speedy trial and then annual reviews upon commitment,
the Second District explained that once the right to a trial within thirty days is
waived, these proceedings ―often seem to take many years.‖ Id. The district court
reasoned that if DCF were not providing treatment during this delay, then ―a
pretrial detainee may not actually hold the keys to the cell in which he is civilly
detained.‖ Id.
Because it lacked territorial jurisdiction over the Seventeenth Judicial Circuit
Court where Morel‘s Jimmy Ryce proceedings were pending, the Second District
expressed concern over how this matter could be fairly resolved for all parties
without a hearing involving that circuit court. Id. Noting that the facts of this case
raised substantial questions concerning the constitutionality of Morel‘s Jimmy
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Ryce proceedings, as well as those proceedings involving other individuals
detained at the FCCC, the Second District certified the circuit court‘s judgment as
having a great effect on the proper administration of justice throughout the state
and requiring this Court‘s immediate resolution. Id. at 1062-64.
After receiving the Second District‘s certification, this Court concluded that
the failure to receive treatment as a pretrial detainee and the failure to have held a
civil commitment trial for eight years presented serious questions as to the
functioning of this state‘s system for civil commitments and the legality of Morel‘s
continued confinement. See Morel v. Sheldon, 59 So. 3d 1082, 1083 (Fla. 2011).
Given these concerns, the Court temporarily relinquished jurisdiction to the
Seventeenth Judicial Circuit Court, where Morel‘s civil commitment proceedings
were actually pending, to conduct an evidentiary hearing to resolve the following
factual issues:
a. Whether Morel‘s allegations in his petition regarding the
inability to receive treatment because of his pretrial detainee status are
accurate and to obtain details regarding the issues surrounding
treatment (or lack thereof) for pretrial detainees awaiting civil
commitment trials;
b. Whether Morel‘s allegations in his petition regarding the
waiting list to obtain treatment, even if eligible for treatment, are
accurate and, if not, explain;
c. Whether Morel‘s commitment is illegal or unlawful because
of the inordinate amount of time (eight years) since his release from
his prison sentence; and
d. The reason why the trial in this case has not taken place for
eight years and whether Morel has had counsel throughout that time,
and if not, the reasons for lack of counsel.
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Id. at 1084.
After conducting a two-day evidentiary hearing, during which nine
witnesses testified, 4 the circuit court issued a comprehensive order with extensive
findings of fact and conclusions of law. The circuit court provided detailed
answers to this Court‘s questions, concluding as follows: (1) as a pretrial detainee,
Morel is not provided the full panoply of sex offender specific treatment, but is
eligible for a variety of other treatment offerings; (2) there are no waiting lists for
treatment, but for valid reasons, gaps in time exist between specific programs in
the first phase of treatment; (3) neither the Act nor the Constitution requires access
to all four phases of treatment, and Morel‘s detention has been lawful; and (4) the
delays in Morel‘s commitment trial have been made for tactical reasons at his own
request, he has never requested a commitment trial, and during the course of the
4. The following nine witnesses testified: (1) Jeanine Cohen (Morel‘s civil
commitment attorney from 2005 to present); (2) Rob Jakovich (an assistant public
defender who represents defendants in Jimmy Ryce proceedings); (3) Kristin
Kanner (the assistant state attorney who has handled Morel‘s case since December
2004); (4) Dr. Amy Swann (a forensic psychologist who works at the FCCC and
has spoken to Morel); (5) Barbara Brown (an employee in the Broward County
clerk‘s office who explained the docket sheet); (6) Dr. Suzonne Kline (the Director
of the Sexually Violent Predator Program for DCF); (7) Timothy Budz (the
Facility Administrator for GEO at the FCCC); (8) Dr. Robin Wilson (the Clinical
Director at the FCCC); and (9) Ronald Morel himself. Morel also introduced into
evidence a composite exhibit of 170 surveys from residents of the FCCC who
described waiting periods they encountered before entering into treatment
programs; the State filed a rebuttal declaration authored by Keri Fitzpatrick, a
recreational therapist at the FCCC.
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delay, Morel has been consistently represented by counsel. Based on these
findings, the circuit court determined that Morel‘s commitment trial should move
forward because counsel had explored all reasonable avenues to secure his release.
We now address Morel‘s arguments on appeal.
II. ANALYSIS
In support of reversing the Twelfth Judicial Circuit Court‘s denial of habeas
relief, Morel raises the following three claims: (1) denying him treatment because
of his pretrial detainee status violates his rights to due process and equal
protection; (2) because of the delays residents experience before receiving
treatment, the sexual offender treatment program at the FCCC is constitutionally
defective; and (3) Morel‘s confinement is illegal based upon the inordinate amount
of time Morel has remained a pretrial detainee since release from his prison
sentence.5
Our review of these issues involves a mixed question of law and fact. The
circuit court made findings of fact regarding the exact parameters of the sexual
offender treatment program that DCF offers to FCCC residents through GEO, as
well as the cause of the delay in Morel‘s treatment and trial. The circuit court then
determined whether the factual circumstances surrounding Morel‘s pretrial
5. Morel explains the factual basis for the delay as a separate issue, but he
does not set forth a claim for relief with respect to that issue.
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detention amounted to a constitutional violation. Therefore, where, as here, the
circuit court has conducted an evidentiary hearing, we employ a two-step
approach, deferring to the factual findings of the trial court that are supported by
competent, substantial evidence, but reviewing the application of the law to the
facts de novo. See Twilegar v. State, 42 So. 3d 177, 192 (Fla. 2010) (―If the ruling
consists of a mixed question of law and fact addressing certain constitutional issues
. . . the ultimate ruling must be subjected to de novo review but the court‘s factual
findings must be sustained if supported by competent substantial evidence.‖
(quoting State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001))), cert. denied,
131 S. Ct. 1476 (2011). Guided by this standard, we first provide an overview of
the Jimmy Ryce Act and then separately address each issue Morel raises on appeal,
beginning with his claims that center on treatment.
A. The Jimmy Ryce Act
On January 1, 1999, the Jimmy Ryce Act went into effect in Florida, see ch.
98-64, § 24, at 455, Laws of Fla., creating a system whereby individuals
determined to be sexually violent predators would be involuntarily committed to
the custody of DCF and housed in a secure facility ―for control, care, and treatment
until such time as the person‘s mental abnormality or personality disorder has so
changed that it is safe for the person to be at large.‖ § 394.917(2), Fla. Stat (2002).
The Legislature promulgated the Act for the dual propose ―of providing mental
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health treatment to sexually violent predators and protecting the public from these
individuals.‖ Westerheide v. State, 831 So. 2d 93, 112 (Fla. 2002) (plurality
opinion). Although confinement is based upon a criminal conviction for a sexually
violent offense, the Act creates a system of civil, not criminal, detention. See
Mitchell v. State, 911 So. 2d 1211, 1215 (Fla. 2005) (―[I]t is now settled law that
the statutes authorizing civil commitment of sexually violent predators (i.e., the
Jimmy Ryce Act), are civil.‖); see also Kansas v. Hendricks, 521 U.S. 346, 369
(1997) (concluding that Kansas‘s Sexually Violent Predators Act establishes a civil
rather than a criminal detention scheme).
Commitment proceedings were instituted against Morel pursuant to section
394.9135, Florida Statutes (2002), which provides for expedited procedures when
the anticipated release from total confinement ―becomes immediate for any
reason.‖ § 394.9135(1), Fla. Stat. When this occurs, ―the agency with jurisdiction
[here, the Department of Corrections] shall upon immediate release from total
confinement transfer that person to the custody of [DCF] to be held in an
appropriate secure facility.‖ Id. Within seventy-two hours of the transfer, a
multidisciplinary team of mental health professionals must determine both if the
detained person meets the definition of a sexually violent predator under the Act
and if he or she suffers from a mental disorder that makes it likely that the person
will commit another sexually violent offense if not confined. §§ 394.192,
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394.9135(2), Fla. Stat (2002).
Under these expedited procedures, the state attorney may file a petition with
the circuit court alleging that the person is a sexually violent predator within fortyeight hours after receipt of the written assessment and recommendation.
§ 394.9135(3), Fla. Stat. The filing of the petition triggers a new round of
proceedings. If a petition is filed within this applicable timeframe, the judge must
then ―determine[] that there is probable cause to believe that the person is a
sexually violent predator.‖ § 394.9135(1), Fla. Stat. (2002). After a court finds
probable cause, ―the judge shall order the person be maintained in custody and
held in an appropriate secure facility for further proceedings in accordance with
this part.‖ § 394.9135(3), Fla. Stat. The Act does not define the term ―secure
facility,‖ but authorizes DCF to contract with a private entity for the use and
operation of such a facility. § 394.9151, Fla. Stat. (2002).
As to the procedures prior to trial and commitment, the Act does not
contemplate lengthy pretrial detention and provides that a trial to determine
whether a person is a sexually violent predator ―shall‖ be conducted within thirty
days after the determination of probable cause. § 394.916(1), Fla. Stat. At the
time of Morel‘s initial confinement in April 2002, section 394.916(2) provided that
―[t]he trial may be continued upon the request of either party and a showing of
good cause, or by the court on its own motion in the interest of justice, when the
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person will not be substantially prejudiced.‖6
At the conclusion of a trial where either the court or a jury determines that
the person is a sexually violent predator, he or she ―shall be committed to the
custody of [DCF] for control, care, and treatment until such time as [his or her]
mental abnormality or personality disorder has so changed that it is safe for the
person to be at large.‖ § 394.917(2), Fla. Stat. Subsequent to commitment,
persons classified under the Act are periodically examined, at least annually, and a
determination is made as to whether he or she may be released safely. See
generally § 394.918, Fla. Stat. (2002). In addition, persons committed under the
Act have the right to petition for release. § 394.918(2), Fla. Stat. Although the Act
expressly provides for the treatment of those against whom a commitment order
has been entered, it does not address treatment for those who are in the custody of
DCF but awaiting a civil commitment trial. See § 394.917(2), Fla. Stat.
B. The FCCC’s Sexual Offender Treatment Program
As to the treatment that DCF offers to FCCC residents through GEO, Morel
raises two claims. Morel first contends that DCF‘s current policy of denying him
full access to the comprehensive SOTP due to his status as a pretrial detainee
violates his rights to due process and equal protection. He next asserts that the
6. In 2006, the Legislature revised section 394.916(2) to impose an outer
time limit on the length of continuances a trial court could grant. See ch. 2006-33,
§ 1, Laws of Fla. The significance of the Legislature‘s revisions is discussed in
more detail below.
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FCCC‘s operation of the SOTP is defective because of frequent delays residents
experience when attempting to obtain treatment. 7 After conducting an evidentiary
hearing, the circuit court concluded that Morel‘s claims were without merit. We
agree with the circuit court‘s findings and affirm the denial of relief.
1. Access to Treatment
Morel first asserts that he is being unconstitutionally denied full access to
the FCCC‘s comprehensive SOTP because he is a pretrial detainee. This claim
served as the primary basis for which Morel sought habeas corpus relief. During
the time in which Morel‘s habeas petition was pending in state court, a class-action
suit addressing similar allegations was pending in the United States District Court
for the Middle District of Florida. See Canupp v. Sheldon, No. 2:04-cv-260-FTM99DNF, 2009 WL 4042928, at *1 (M.D. Fla. Nov. 23, 2009), aff‘d sub nom.
Canupp v. Liberty Behavioral Healthcare Corp., No. 10-10135, 2011 WL 6003986
(11th Cir. Dec. 1, 2011). In Canupp, detained and committed FCCC residents
7. Morel does not argue that his conditions of confinement while awaiting
trial are punitive in nature. Cf. Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004)
(―At a bare minimum, then, an individual detained under civil process—like an
individual accused but not convicted of a crime—cannot be subjected to conditions
that ‗amount to punishment .‘ ‖ (quoting Bell v. Wolfish, 441 U.S. 520, 537
(1979))); In re Commitment of Finfrock, 28 So. 3d 983, 983 (Fla. 2d DCA 2010)
(concluding that an individual detained at the FCCC while awaiting his Jimmy
Ryce trial presented a legally sufficient habeas claim where he alleged that his
placement in restrictive confinement amounted to punishment and violated his
constitutional rights).
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alleged the program offered inadequate sexual offender treatment that would allow
a realistic opportunity to meet the statutory requirements for release from
confinement. Id. Because Morel had neither sought nor consented to treatment at
the time of filing, he was ineligible to be a member of the Canupp class.
In response to the Canupp lawsuit, DCF replaced the initial contract provider
of mental health services, Liberty, in July 2006 and awarded a contract for the
operation and management of the FCCC programs to GEO. DCF addressed the
issues raised in the class action by implementing a comprehensive SOTP and a
―Final Action Plan.‖ Id. at *11. In April 2009, DCF opened a state-of-the-art, $62
million facility for the FCCC, and in November 2009, the district court dismissed
the class-action suit and did not retain jurisdiction or oversight.
During relinquishment in the present case, it was established that the
comprehensive SOTP that GEO now offers to FCCC residents is divided into four
phases. In its order, the circuit court set forth the organization and proposed
duration of each component of this multitiered treatment program:
The comprehensive SOTP at the FCCC is divided into four
phases:
Phase I: Preparation for Change (three programs)
- Moral Reconation Therapy (MRT)
-Thinking for Change (T4C)
-Treatment Readiness for You (TRY)
Phase II: Awareness
-Stage 1 – Disclosure
-State 2 – Discovery
Phase III: Healthy Alternative Behaviors
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Phase IV: Maintenance and Comprehensive Discharge
Planning
Assuming a fully engaged and sufficiently motivated
participant, the anticipated timeframe for completion of Phase I is
between 15 to 18 months, for Phase II from 18 to 24 months, for
Phase III from 18 to 24 months, and Phase IV from 6 to 9 months.
Thus, a resident could complete the programs in 5 to 5 1/2 years.
Residents completing Phase IV of the program are considered to have
reached ―maximum therapeutic benefit,‖ which is a measurement of
treatment progress. Reaching maximum therapeutic benefit does not
necessarily mean that the resident is ready or safe for release.
Findings of Fact Regarding Morel‘s Pretrial Detention and Treatment at 18-19
[hereinafter ―Findings of Fact‖]. In terms of treatment, GEO‘s program
differentiates between pretrial detainees and all other residents. Until 2005,
Liberty offered all residents full access to treatment. When GEO took over, GEO
implemented a policy authorizing detainees to participate in a portion of Phase I,
the MRT course, but excluding detainees from admittance into the final two
courses in Phase I, T4C and TRY, and completely excluding detainees from
participation in Phases II, III, and IV. Because detainees are technically not
committed, they can never secure maximum therapeutic benefit.
In addition to the comprehensive SOTP, GEO currently offers a variety of
other adjunct therapies, which are available to all residents, including detainees.
As to these adjunction therapies, the circuit court found as follows:
Phase I is psychoeducational and the subsequent phases are
psychotherapeutic. While the comprehensive SOTP Phases II-IV are
unavailable to detainees, there are a variety of adjunct therapies and
activities available to all residents, including detainees, such as
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Substance Abuse Education and Treatment, Treatment for CoOccurring Conditions, Substance Abuse Relapse Prevention, Human
Sexuality Education, Emotions Management, Interpersonal
Communication, Family Relationships, Health and Wellness,
Medication Management, Mental Health Treatment, Lifestyle
Management, [Narcotics Anonymous and Alcoholics Anonymous],
Personal Victimization, Sexual Thoughts and Fantasies, and Sexual
and Interpersonal Violence Awareness. All residents, including
detainees, may access educational and vocational services including
GED and adult education, the computer lab, the law library, as well as
recreational and leisure services and activities. Detainees are able to
enroll in MRT in Phase I of the SOTP and Dr. Wilson‘s Thursday
night program. This program was designed to help detainees be more
successful in their later treatment.
Findings of Fact at 22.
Morel does not challenge the circuit court‘s factual findings. Instead, he
asserts that the limited treatment options made available to pretrial detainees are
constitutionally inadequate. Because the Act does not expressly provide for sexual
offender treatment of noncommitted detainees, we must decide whether the
Constitution nevertheless imposes such a requirement, and if so, to what extent.
Although both this Court and the United States Supreme Court have recognized
that civil commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection, see, e.g., Addington v. Texas, 441 U.S.
418, 425 (1979); Murray v. Regier, 872 So. 2d 217, 221 (Fla. 2002), the decisions
discussing this issue have never before addressed the exact type of treatment that is
constitutionally mandated. See Johnson v. State, 215 P.3d 575, 583 (Kan. 2009)
(noting that the United States Supreme Court has not established a standard to
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address challenges to the constitutional adequacy of sexual predator treatment
programs).
When discussing state statutes authorizing the commitment of sexually
violent predators, the United States Supreme Court has held that ―[s]tates enjoy
wide latitude in developing treatment regimens.‖ Hendricks, 521 U.S. at 368 n.4
(citing Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (observing that the State
―has considerable discretion in determining the nature and scope of its
responsibilities‖)). Without enunciating the standard to be applied or the type of
treatment that is constitutionally required, the Supreme Court in Hendricks upheld
Kansas‘s statutory scheme for commitment of sexually violent predators given that
the legislation‘s overriding concern was the continued segregation of sexually
violent offenders with the ―ancillary goal of providing treatment to those offenders,
if such is possible.‖ Id. at 366. On the issue of treatment specifically, the Supreme
Court explained that it had never held that the Constitution prevents a state from
civilly detaining those for whom no treatment is available, but who nevertheless
pose a danger to others:
While we have upheld state civil commitment statutes that aim both to
incapacitate and to treat, we have never held that the Constitution
prevents a State from civilly detaining those for whom no treatment is
available, but who nevertheless pose a danger to others. A State could
hardly be seen as furthering a ―punitive‖ purpose by involuntarily
confining persons afflicted with an untreatable, highly contagious
disease. Similarly, it would be of little value to require treatment as a
precondition for civil confinement of the dangerously insane when no
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acceptable treatment existed. To conclude otherwise would obligate a
State to release certain confined individuals who were both mentally
ill and dangerous simply because they could not be successfully
treated for their afflictions.
Id. (citations omitted); see also Westerheide, 831 So. 2d at 101-02 (adopting this
analysis to reject a respondent‘s claim that the Jimmy Ryce Act was ―holding the
untreatable for treatment‖ since there was a lack of scientific support that such sex
offenders could be helped through treatment). In dissent, Justice Breyer explained
that some states ―begin treatment of an offender soon after he has been
apprehended and charged with a serious sex offense,‖ Hendricks, 521 U.S. at 388
(Breyer, J., dissenting), implying that states may afford treatment for an alleged
sexually violent predator prior to the time of trial and adjudication in commitment
proceedings.
In Seling v. Young, 531 U.S. 250, 265 (2001), the Supreme Court further
observed that ―due process requires that the conditions and duration of
confinement . . . bear some reasonable relation to the purpose for which persons
are committed.‖ The Supreme Court in Young, however, did not address whether
those requirements were met, and as in Hendricks, discussed this standard in
relation to those individuals for whom commitment orders had already been
entered.
In People v. Ciancio, 134 Cal. Rptr. 2d 531, 544-45 (Cal. Ct. App. 2003), a
California appellate court addressed an issue similar to the one we address here—
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whether alleged sexually violent predators, who were released from prison and
detained in jail pending their commitment trials, are entitled to treatment and
housing in a state mental hospital prior to trial. After reviewing relevant Supreme
Court precedent, the California court concluded that while there was no precommitment right to mandatory treatment for an alleged sexually violent predator
prior to the time of trial and adjudication, states did have the discretion to afford
such treatment. Id. at 544-46. The court in Ciancio determined that California law
permitted, although it did not require, trial courts ―to order [detainees] to a state
hospital, which is a therapeutic environment where treatment is provided.‖ Id. at
546.
Unlike the California law at issue in Ciancio, Florida‘s Jimmy Ryce Act
neither mandates nor permits trial courts to order that pretrial detainees receive full
access to the FCCC‘s comprehensive SOTP. Moreover, Morel has not provided
any authority for the proposition that noncommitted detainees are constitutionally
entitled to treatment absent statutory authorization. In rejecting Morel‘s challenge,
the circuit court applied the leading case on the rights of persons civilly confined to
state institutions, Youngberg, and determined that even if Morel had some
constitutional right to treatment pending trial, he was not entitled to any specific
type of treatment.
The Supreme Court‘s decision Youngberg announced a distinct standard to
- 21 -
be applied in measuring a state‘s constitutional duties to mental incompetents,
addressing the extent to which the Due Process Clause imposes upon states an
affirmative duty to care for, treat, and protect persons in its custody. 457 U.S. at
324. There, a mentally retarded individual involuntarily committed in a state
hospital brought a suit against state officials, alleging injuries received as a result
of his own violence and the reactions of other residents to him, unduly prolonged
physical restraints, and a failure to provide him with appropriate treatment for his
mental retardation. Id. at 310-11. The Supreme Court upheld his claims to safe
conditions and to freedom from unnecessary bodily restraints. Id. at 315-16. It
found his claim to a ―constitutional right to minimally adequate habilitation,‖
however, to be ―more troubling.‖ Id. at 316.
As to this claim, the Supreme Court in Youngberg first recognized that
―[w]hen a person is institutionalized—and wholly dependent on the State,‖ there
exists ―a duty to provide certain services and care.‖ Id. at 317. The Court then
agreed that a committed person is entitled to ―minimally adequate or reasonable
training to ensure safety and freedom from undue restraint.‖ Id. at 319. This
measure flowed from the premise that ―[p]ersons who have been involuntarily
committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to
punish.‖ Id. at 321-22. Notably, the Court found it unnecessary to consider ―the
- 22 -
difficult question [of] whether a mentally retarded person, involuntarily committed
to a state institution, has some general constitutional right to training per se, even
when no type or amount of training would lead to freedom.‖ Id. at 318.
The Court in Youngberg further explained that whether a confined patient‘s
constitutional rights have been violated necessarily depends upon a balancing of
his liberty interests against relevant state interests and noted that to ensure
uniformity in protecting these various interests, the balancing should not be left to
the unguided discretion of a judge or jury. Id. at 321. Therefore, the Court
established a deferential standard, holding that ―the Constitution only requires that
the courts make certain that professional judgment in fact was exercised. It is not
appropriate for the courts to specify which of several professionally acceptable
choices should have been made.‖ Id. (quotation omitted). Emphasizing that
treatment and training decisions, if made by a professional, are presumptively
valid, the Youngberg Court held that ―liability may be imposed only when the
decision by the professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment.‖ Id. at 323.
Given the lack of clear guidance on which standard to apply, courts have
applied various analyses to evaluate the constitutional adequacy of treatment
- 23 -
programs for sexually violent predators confined in state custody. 8 We agree with
the circuit court, however, that if the Youngberg standard applies, Morel has failed
to establish a basis for relief. 9
8. In Johnson, the Supreme Court of Kansas surveyed the different
approaches courts have taken when evaluating the constitutionality of state civil
commitment treatment programs, noting that the issue has been the subject of
debate by legal analysts and listing the following examples:
Allison v. Snyder, 332 F.3d 1076, 1081 (7th Cir. 2003) (applying
Youngberg and holding (1) committed individuals are entitled to some
treatment, and (2) what that treatment entails must be decided by mental
health professionals); Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000)
(holding that due process requires that civilly committed persons be
provided ―a realistic opportunity to be cured or improve the mental condition
for which they were confined‖); Ohlinger v. Watson, 652 F.2d 775, 777-78
(9th Cir. 1980) (stating civilly committed persons are entitled to mental
health treatment that gives them a realistic opportunity to be cured and
released; standard is one only required to provide a ―reasonable level of
treatment based upon a reasonable cost and time basis‖); Cross v. Harris,
418 F.2d 1095, 1107 (D.C. Cir. 1969) (due process commands that
conditions and duration of confinement bear some reasonable relation to its
civil purpose—treatment—without which incapacitation serves as mere
preventive detention, ―a warehousing operation for social misfits‖).
Johnson, 215 P.3d at 584. Although the trial court in Johnson applied a standard of
whether the treatment fell within the range of treatment recognized by reasonable
professionals, as contemplated by the Supreme Court in Youngberg, the Supreme
Court of Kansas never decided the issue because of the petitioners‘
noncompliance. Id.
9. Other courts, including the United States District Court for the Middle
District of Florida in the Canupp federal class-action case that specifically
addressed the treatment offered at the FCCC, have applied the Youngberg standard
when confronted with similar claims. See Canupp, 2009 WL 4042928, at *10-11
(relying on Youngberg for the proposition that ―persons involuntarily in
institutions have a substantive due process right to minimally adequate treatment,‖
but noting that Youngberg only provides for ―minimal constitutional standards‖
- 24 -
In this case, the circuit court concluded that the evidence adduced during
relinquishment clearly established valid and substantial reasons for precluding
noncommitted detainees from fully participating in the FCCC‘s comprehensive
SOTP, finding as follows:
In September 2005, Liberty closed the comprehensive sex
offender treatment program to detainees. [n. 15] In 2006, GEO sex
offender treatment experts discussed and debated whether residents
who are detained should be permitted to fully participate in treatment.
After consultation with the Treatment Advisory Board, Public
Defenders, and others, it was decided that the then existing policy to
preclude detainees from Phases II-IV was a professionally sound one.
The decision to exclude detainees from the comprehensive SOTP is
appropriate for several reasons outlined by the experts. First,
participating in treatment beyond the initial MRT program in Phase I
requires preparation for full disclosure of the resident‘s prior sexual
crimes. Full disclosure, in the current treatment paradigm, is made at
the beginning of Phase II. Full disclosure is critical to the
effectiveness of the treatment program. Committed residents are
motivated to make full disclosure of their offender histories (prior
deviant sexual behavior) in order to achieve the benefits of the
treatment and move forward in the program. Detainees have less
motivation for full disclosures because their commitment
proceeding[s] are still pending and information disclosed in the
clinical records made during treatment can be obtained and used
and that the Constitution does not require ―optimal treatment‖); see also Snyder,
332 F.3d at 1081 (―The defendants‘ contention that Illinois is using programs that
represent the application of reputable professional judgment [under Youngberg]
stands without any serious contest.‖); Burch v. Jordan, No. 07-3236, 2010 WL
5391569, at *14-17 (D. Kan. Dec. 22, 2010) (applying the Youngberg standard to a
claim challenging the state‘s treatment program following petitioner‘s
commitment), aff‘d, No. 11-308 (10th Cir. Sept. 22, 2011); Hargett v. Adams, No.
02-C-1456, 2005 WL 399300, at *19-20 (N.D. Ill. Jan. 14, 2005) (applying
Youngberg to claims of inadequate treatment); Laxton v. Watters, 348 F. Supp. 2d
1024, 1028 (W.D. Wis. 2004) (applying Youngberg standard to constitutional
challenge to sexually violent predator treatment offered).
- 25 -
against them at their commitment trial. [n. 16] This causes a conflict for
the detainee. There is also an ethical conflict for the therapists for the
detainees because the records made of the detainees treatment
progress may negatively impact the detainee at trial. Secondly, the
lack of candor of the detainees works to degrade the integrity of the
program and effectiveness of the group dynamic for those who are
committed, consenting, and fully participating. Finally, detainees are
more likely to drop out of treatment due to the issues associated with
disclosure and the tension created between treatment and the
commitment proceedings. Some research studies indicate that those
who drop out before completing the treatment phases are more likely
to recidivate than those who don‘t begin treatment at all.
....
There is no dispute that, other than those grandfathered into the
treatment program in September 2005, detainees at the FCCC
currently are not permitted to participate in the comprehensive SOTP
beyond the MRT group in Phase I. DCF established at the hearing
that participation by detainees (1) undermines the integrity and
compromises the effectiveness of the SOTP for those committed
participants due to the lack of full disclosure by detainees, (2) creates
conflicts for the clinical therapists treating the detainees, and (3)
presents legal issues for the detainees in their commitment
proceedings. This Court finds that these are all valid reasons for
excluding detainees from treatment participation based upon the
professional judgment of experts in the field. . . . [T]he Court also
finds that, in addition to the MRT group in Phase I, there is an array of
adjunct therapeutic groups and services available that would benefit
detainees in the context of their commitment proceedings.
[N. 15.] Financial considerations were an important factor
when Liberty closed the SOTP to detainees. This is no longer a
factor or basis for precluding detainees from Phases II-IV.
[N. 16.] The Legislature considered this dilemma in March
2006 and chose not to change the statute to preclude statements
made by detainees (or those already committed) during
treatment.
Findings of Fact at 20-22, 29. The circuit court then applied the Youngberg
- 26 -
standard to its factual determinations and concluded that Morel was not entitled to
the treatment he seeks:
To prove a constitutional violation, Morel must demonstrate
that FCCC‘s practices and administrative or clinical decisions
pertaining to treatment are such a substantial departure from accepted
professional judgment, practice and standards as to demonstrate that
the person responsible did not base the decision on such judgment.
Morel has failed to do so. The expert witnesses clearly established
why, in their professional judgment, detainees should be excluded
from the full panoply of treatment. The FCCC is accredited by [the
Commission on Accreditation of Rehabilitation Facilities (CARF)]
and is regularly monitored by a Treatment Advisory Board to insure
[its] treatment program meets nationally recognized standards.
....
Under the applicable case law if, in fact, Morel is entitled to
treatment there is no constitutional or statutory requirement that he
receive sex offender specific treatment. While a duty to provide
certain services and care does exist, the State has considerable
discretion in determining the nature and scope of its responsibilities.
Youngberg, 457 U.S. at 317.
Findings of Fact at 33-35.
The circuit court‘s factual findings are supported by competent, substantial
evidence, and we agree with the court‘s well-reasoned legal conclusions. The
State‘s contention that Florida is using treatment that represents the application of
reputable professional judgment stands without any serious contest. This Court‘s
role is not to second-guess the professional judgment of State employees. Morel
has not supplied any reason for this Court to conclude that the choices made by
DCF, and more specifically GEO, for sexual offender treatment at the FCCC are so
far outside the bounds of professional norms that they must be equated with no
- 27 -
professional choice at all. We therefore affirm the denial of relief on this claim.
With respect to Morel‘s contention that he has been denied the right to equal
protection because he is treated differently than those FCCC residents who have
been committed, this claim too fails. Under Florida law, ―all similarly situated
persons are equal under the law and must be treated alike.‖ Ocala Breeders‘ Sales
Co. v. Fla. Gaming Ctrs., Inc., 793 So. 2d 899, 901 (Fla. 2001). By contrast,
―[d]ifferent treatment of dissimilarly situated persons does not constitute an equal
protection violation.‖ Meola v. Dep‘t of Corr., 732 So. 2d 1029, 1037 (Fla. 1998)
(plurality opinion). Morel is not similarly situated to those FCCC residents for
whom commitment orders have already been entered. As the circuit court
correctly concluded, pretrial detainees, like Morel, are in a different legal posture
than committed residents since ―statements made regarding their sexual offenses
during treatment could be used against them at a [future] commitment trial.‖
Findings of Fact at 35. Accordingly, there is no equal protection violation.
2. Delays in Treatment
Morel also alleges that GEO‘s acknowledgment of delays of up to twenty
weeks between classes at the FCCC evidences a defect in the comprehensive
SOTP. We reject this claim, as did the circuit court, because Morel‘s assertions are
directly refuted by the record. The circuit court found the treatment program that
GEO implements for DCF to be operating adequately. The court determined that
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no waiting lists exist and that time gaps in the Phase I modules T4C and TRY
occur because the groups move in tracks or cohorts. The court also determined
that the FCCC‘s sexually violent predator program is fully funded and that Morel‘s
contentions that extended waiting lists exist because the program is underfunded
and insufficiently staffed were unfounded. These findings are supported by
competent, substantial evidence. Because the record establishes valid reasons for
any perceived delay that occurs during Phase I of the treatment program, Morel has
failed to establish that the program is constitutionally defective. We therefore
affirm the denial of relief on this claim.
C. Pretrial Delay and Detention
We next address Morel‘s contention that the prolonged period of time he has
remained confined as a pretrial detainee since release from his prison sentence is
illegal. On this issue, the circuit court found that since the State‘s initiation of
Jimmy Ryce proceedings against Morel, Morel has been consistently represented
by counsel and that the protracted delay in his being brought to trial was a tactical
choice made at his own request. The circuit court made extensive findings of fact,
which chronicled the series of events giving rise to this delay, including Morel‘s
initial waiver of his right to a commitment trial within thirty days and his
subsequent requests for continuances, and ultimately found as follows:
Morel has never wanted trial and at all times, from April 29,
2002, to present, Morel has been represented by counsel.
- 29 -
A petition seeking the involuntary civil commitment of Ronald
Morel was filed on April 23, 2002, and an ex parte probable cause
order was signed by Judge Robert Carney on the same day. At a
hearing on April 29, 2002, the public defender was appointed to
represent Morel. Morel signed a waiver of speedy trial. In most
instances, a detainee does not want a trial in thirty days.
Extensive discovery and pretrial motions were completed, and
the case was placed on the trial docket for July 2005. On Morel‘s
motion, the case was continued while attorney Cohen [the attorney
Morel privately retained in June 2005] tried to set aside his underlying
conviction on a Rule 3.850 petition. When that failed, Cohen and
State Attorney Kristin Kanner began settlement discussions. The
attorneys worked toward a self-commitment contract[10] from 2008 to
2010, but negotiations ultimately stalled in late 2010. This case was
set for trial on January 24, 2011. Subsequently, a motion for
continuance was denied. A renewed defense motion for continuance
was granted, and the Supreme Court entered a stay.
Morel has never reasserted his right to trial in thirty days. The
State has never prevented Morel from going to trial. The Court has
always been available to conduct a trial. Despite the lengthy delays,
attorney Cohen claimed she was not ready for trial.
The statute provides for a speedy trial so that if one meets the
10. Based on the testimony presented, the circuit court defined a selfcommitment contract in the following manner:
A self-commitment contract is a mechanism employed by the
State Attorney and the detainee to bypass a commitment trial. The
detainee agrees to be ―committed.‖ As a result, he will receive sex
offender specific treatment at FCCC with a view toward release after
agreed upon criteria are met. The contract usually contains conditions
of release to insure the community is protected. The conditions are
often similar to those of sex offender probation. The terms of the
agreement vary depending primarily upon the background of the
detainee. These multifaceted agreements, signed by the State and the
detainee, must be approved by the circuit court that entered the
probable cause finding.
Findings of Fact at 6 n.4. The Act does not expressly reference self-commitment
contracts.
- 30 -
criteria for commitment [he or she] can obtain long term treatment
and care. The reality is Morel seeks to circumvent the clear intent of
the statute by avoiding a determination of commitment. For tactical
reasons, he wants to avoid trial.
....
The Second District Court of Appeal expressed concern over
the length of time before the Jimmy Ryce Act cases proceed to trial.
Those reasons were explored at the hearing. When a person is first
detained, the State is ready for trial as it has access to the
psychologists who recently assessed the defendant and their reports.
The State experts are prepared to testify that the defendant meets the
criteria as a sexually violent offender and is likely to re-offend. And a
judge is always available to try the case. The defense finds itself at a
disadvantage because it would prefer to have an expert witness who
will support release of the detainee and testify that the detainee is not
likely to re-offend. From the detainee‘s standpoint, it is usually more
important for the detainee to find a favorable defense expert than it is
to go to trial within thirty days. Finding such a defense oriented
expert can be problematic and a lengthy tedious process. Defense
counsel may have to hire serially as many as six doctors before he
finds one who can testify favorably for his client. Many of the doctors
are from out of town or state. The limited number of defense oriented
doctors are very busy and difficult to schedule for evaluations and
trial. This process can literally take years. There are other avenues to
secure release the defense can pursue as well, such as the selfcommitment contract . . . . Again, a difficult and lengthy process.
Findings of Fact at 36-38 (footnote omitted).
Although Morel has made no effort to show that the circuit court‘s factual
findings on this issue lack record support, our review of the record reveals that
these findings are supported by competent, substantial evidence. It is clear that
Morel agreed to an indefinite waiver of the statutory trial period for strategic
reasons, that he has never objected to his continued confinement on this basis, and
that the State has at all times been prepared and ready for trial. In fact, Morel‘s
- 31 -
attorney conceded that Morel has been active in trying to secure treatment without
trial due to the stigma associated with commitment. 11 Instead of challenging the
circuit court‘s factual findings, Morel advances a legal argument and asserts that
the ―system‘s failure to ensure [him] a prompt resolution of his case violated his
due process rights.‖ Morel contends that a detainee‘s initial waiver of the thirtyday statutory period should not permit detention to continue indefinitely without a
trial and that his civil detention of more than eight years is presumptively
prejudicial.
From a legal standpoint, this Court has observed that ―[t]he power to detain
an individual for involuntary commitment is subject to certain well-defined
constitutional limitations.‖ Mitchell, 911 So. 2d at 1216 (quotation omitted). This
principle is hardly controversial and flows logically from the premise that civil
commitment proceedings initiated pursuant to the Act ―involve a serious
deprivation of liberty and, thus, such proceedings must comply with the due
process clauses of the Florida and United States Constitutions.‖ State v. Goode,
830 So. 2d 817, 825-26 (Fla. 2002) (citing Addington, 441 U.S. at 425 (holding
that civil commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection)).
11. For example, Morel‘s attorney emphasized that once committed, Jimmy
Ryce respondents must register as sexual predators—a designation placed upon the
respondent for the rest of his or her life.
- 32 -
This Court has recognized that in passing the Act the Legislature apparently
contemplated that civil commitment proceedings would be ―conducted well before
a sexual offender‘s prison sentence expires, so as to minimize the risk of . . .
indefinite detentions without a trial.‖ Goode, 830 So. 2d at 830; see also Osborne
v. State, 907 So. 2d 505, 509 (Fla. 2005) (emphasizing the Legislature‘s dual
concern that ―a respondent not be indefinitely detained and that the State act
promptly in bringing the matter to trial so that the respondent‘s detention after the
criminal sentence expires be kept to a minimum‖). Concerns over an individual‘s
right to due process prompted the drafters of the Act to include section 394.916(1),
which requires that a trial to determine whether a person is a sexually violent
predator be conducted within thirty days of the probable cause determination. See
§ 394.916(1), Fla. Stat. With its inclusion of this provision, the Legislature sought
to ―temper the drastic effects of the indefinite detention scheme by the imposition
of rigid time constraints set out in explicit language.‖ Goode, 830 So. 2d at 822.
Interpreting section 394.916(1) in the context of both its express language
and the right to due process, this Court has affirmed that the Act‘s thirty-day
deadline is mandatory, although not jurisdictional. See id. at 830; State v. Kinder,
830 So. 2d 832, 833-34 (Fla. 2002). Moreover, we have routinely emphasized that
―there should be ‗scrupulous compliance‘ with the statutory thirty-day time limit
set forth in section 394.916(1).‖ Goode, 830 So. 2d at 826; see also Kephart v.
- 33 -
Hadi, 932 So. 2d 1086, 1092-93 (Fla. 2006) (examining the Ryce Act‘s ―numerous
safeguards to ensure that a prisoner‘s due process rights are protected‖ and
explaining that ―[t]he confinement of an individual past the expiration of his or her
incarcerative sentence requires ‗scrupulous compliance‘ with the Act‘s
requirements‖).
Indeed, it was our concern over the significant and substantial liberty
interests involved with involuntary and indefinite detentions that led this Court in
Goode to observe that
[i]ndefinite commitments under the Ryce Act clearly do not present
situations where compliance is a matter of convenience or
inconsequential matters are at issue. To the contrary, under the Ryce
Act, detainees could literally be committed indefinitely for the rest of
their lives. The U.S. Supreme Court has stated that even in civil
commitments ―[f]reedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause from arbitrary
governmental action.‖ Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
―It is clear that ‗commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.‘ ‖ Jones v.
United States, 463 U.S. 354, 361 (1983) (quoting Addington v. Texas,
441 U.S. 418, 425 (1979)). Obviously these commitments involve
serious substantive rights with constitutional implications.
Goode, 830 So. 2d at 825. While acknowledging the Legislature‘s intent that the
review process of potential sexual predators would end while the person was still
in prison, the Court commented upon evidence that ―in practice this [was] not
occurring and that often people are being detained for long periods after their
scheduled release date without being taken to trial.‖ Id. at 825 & n.7; see also
- 34 -
Murray, 872 So. 2d at 222 (noting that lengthy pretrial detentions ―are apparently
not uncommon in civil commitment proceedings under the Act‖). In Kinder,
which was released the same day as Goode, this Court further observed that
indefinite detentions under the Act were directly contrary to fundamental
principles of due process:
In Goode we concluded that the Legislature did not intend the
thirty-day time period explicitly set out in the statute to be merely a
―suggested‖ practice, particularly when, as illustrated by this case,
failure to comply with the time limit may mean a person can be
detained for months or years on end without trial based on an ex parte
proceeding. This Court can think of no other context, civil or
criminal, that would allow an individual to be detained indefinitely
based on a probable cause determination where the individual had no
right to appear. Such a practice is directly contrary to fundamental
principles of due process set out in our federal and state constitutions.
830 So. 2d at 833-34.
After deciding Goode and Kinder, this Court in Osborne, 907 So. 2d at 509,
concluded that where a Jimmy Ryce respondent has completed his criminal
sentence and is being detained awaiting trial, and the trial period has exceeded the
statutory thirty-day period without a continuance for good cause, the respondent‘s
remedy is release from detention and a dismissal without prejudice of the pending
proceedings. The Osborne remedy does not apply in cases where the respondent
either seeks and obtains the continuance or consents to the delay. See Boatman v.
State, 36 Fla. L. Weekly S728, S730 (Fla. Dec. 15, 2011). Accordingly, pretrial
delay under either scenario does not necessarily offend due process principles.
- 35 -
Before its revision in 2006, section 394.916(2) of the Act provided that
―[t]he trial may be continued upon the request of either party and a showing of
good cause, or by the court on its own motion in the interests of justice, when the
person will not be substantially prejudiced.‖ When interpreting the interplay
between section 394.916, subsections (1) and (2), the Second District in Curry v.
State, 880 So. 2d 751 (Fla. 2d DCA 2004), rejected the argument that the right to a
commitment trial within thirty days under section 394.916(1) could not be waived
and concluded that a waiver was ―essentially equivalent to a request by the
defendant for a continuance under section 394.916(2).‖ Id. at 754. The Second
District acknowledged that a Jimmy Ryce respondent may often need more than
thirty days to prepare a defense and could therefore benefit from the delay, but
cautioned that an initial waiver should not allow detention to continue indefinitely
without trial, reasoning that ―an indefinite detention would violate principles of
due process.‖ Id. at 755 (citing Goode, 830 So. 2d at 825-26). To comply with
due process, the Curry court held that a Jimmy Ryce respondent ―must have an
opportunity to withdraw his waiver and renew the requirement that a trial be held
within thirty days.‖ Id. (citing Fla. R. Crim. P. 3.191(b) (permitting a criminal
defendant to demand a trial within sixty days); Atkins v. State, 785 So. 2d 1219,
1220 (Fla. 4th DCA 2001) (―Once a waiver of speedy trial rights has occurred, a
defendant may ‗start the clock running again‘ by invoking a demand for speedy
- 36 -
trial.‖)).12
Two years after the Second District decided Curry, the Legislature imposed
an outer limit on the length of continuances a trial court could grant, amending
section 394.916(2) to read as follows (additions emphasized, deletions in strikethrough):
(2) The trial may be continued once upon the request of either
party for not more than 120 days upon and a showing of good cause,
or by the court on its own motion in the interests of justice, when the
person will not be substantially prejudiced. No additional
continuances may be granted unless the court finds that a manifest
injustice would otherwise occur.
Ch. 2006-33, § 1, Laws of Fla. This new provision went into effect on July 1,
2006. Id. § 3. On July 9, 2009, this Court adopted the Jimmy Ryce Rules of
Procedure—a comprehensive set of rules to be used specifically in Jimmy Ryce
proceedings that are consistent with and complementary to the legislative scheme.
See In re Fla. Rules of Civil Procedure for Involuntary Commitment of Sexually
Violent Predators, 13 So. 3d 1025 (Fla. 2009). In contrast to the provisions of the
Act, the Jimmy Ryce Rules of Procedure expressly refer to a respondent‘s waiver
12. Several other Florida courts have reached conclusions similar to the
Second District in Curry. See, e.g., Kolin v. State, 927 So. 2d 198, 200 (Fla. 5th
DCA 2006) (concluding that the thirty-day deadline may be waived and that
―section 394.916(2) of the Act provides for waiver of the deadline upon the trial
court‘s granting of a well-founded motion to continue‖); Williams v. State, 870
So. 2d 922, 923 (Fla. 3d DCA 2004) (rejecting respondent‘s argument that he
should be released from custody because he was not brought to trial within thirty
days of the trial court‘s probable-cause finding because respondent explicitly
waived the thirty-day trial requirement in order to work on his defense).
- 37 -
of the thirty-day time limit.
Section (a) of rule 4.240, which is entitled ―Trial Proceedings After Finding
of Probable Cause; 5 Day Status Hearing; Determination of Counsel for the
Respondent; Waiver of Time Limitations,‖ authorizes a Jimmy Ryce respondent to
waive the thirty-day statutory period and provides in pertinent part:
The trial to determine if the respondent is a sexually violent predator
shall be commenced within 30 days after the summons has been
returned served and filed with the clerk of the court, unless the
respondent waives the 30 day time period in writing, with a copy to
the assigned judge, or on the record in open court. The court shall set
a trial date not less than 90 days after the date of the waiver of the 30
day period. Further continuances shall be allowed only on good cause
shown. A future trial date shall be set if a further continuance is
allowed.
(Emphasis added.) Rule 4.260, which is entitled ―Continuance of Trial,‖ tracks the
language of section 394.916(2), Florida Statutes (2011), and provides in full:
A motion for continuance by either party shall be in writing
unless made in a hearing in open court and shall be signed by the
party or attorney requesting the continuance. The motion shall state
all of the facts that the movant contends entitles [sic] the movant to a
continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when the witness will
be available. The trial may be continued once upon the request of
either party for not more than 120 days upon a showing of good cause,
or by the court on its own motion in the interests of justice, when the
person will not be substantially prejudiced. No additional
continuances may be granted unless the court finds that a manifest
injustice would otherwise occur. Continuances should only be
ordered upon a showing of good cause. A motion for continuance on
behalf of the respondent shall state that the respondent has been
advised of all consequences of the request and of any rights waived by
the motion.
- 38 -
(Emphasis added.)
A reading of rule 4.240, which discusses the parameters of waivers and
refers to continuances, together with rule 4.260, which discusses the exact
parameters of continuances, demonstrates that consistent with the Second District‘s
reasoning in Curry, waivers should not be open-ended or result in indefinite
detentions. Under rule 4.240, a waiver acts as a triggering event for setting the
case for trial. Once a waiver is entered, this prompts the court to set a trial date not
less than ninety days from the date the waiver was executed. If either party seeks a
continuance of the trial date as originally set, and good cause is shown, rule 4.260,
which follows the language of section 394.916(2), prohibits the trial court from
extending that trial date beyond 120 days. If either party seeks a further
continuance beyond a 120-day extension, the trial court may not grant the motion
unless the court finds that a manifest injustice would otherwise occur. 13
Our plain-reading construction of rules 4.240 and 4.260 minimizes the risk
of any potential due process violation related to open-ended waivers and indefinite
pretrial delay and detention, even where a respondent consents to the delay. We
note that the Second District‘s conclusion in Curry that a Jimmy Ryce respondent
13. During a February 3, 2011, status hearing before the Seventeenth
Judicial Circuit Court to address the Jimmy Ryce cases currently pending in that
circuit, the court agreed with this interpretation of the rules. At this hearing, the
parties discussed whether the continuing need to find a psychologist to support the
defense‘s position at trial would present a valid basis for finding manifest injustice,
but we do not reach that issue here.
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may recapture his right to a trial within thirty days after entering a waiver, as
defendants are permitted to do in the criminal, speedy-trial context, was based on
an interpretation of Florida law as it existed before the Jimmy Ryce Rules of
Procedure went into effect. However, neither the Act nor the Jimmy Ryce Rules of
Procedure provide a respondent with a right to recapture the thirty-day time period
once a waiver has been entered. Instead, when read together, these provisions
authorize close-ended waivers, contemplate that a trial date be set at the time a
waiver is entered, and set forth an outer time limit in which to set a trial if any
further continuances of that trial date are permitted.
We recognize that Morel‘s case falls into an unusual category, in that he
executed a waiver of the thirty-day time limit in April 2002—almost four years
before the Legislature‘s revision to section 394.916(2) and almost seven years
before the Jimmy Ryce Rules of Procedure went into effect. Therefore, the event
triggering the circuit court‘s obligation to set a trial date under the new rules—
Morel‘s waiver—occurred years before they went into effect. At the time Morel
entered his waiver, the trial court was not required to set this case for trial. The
question, then, is whether due process still entitles Morel to relief.
Morel analogizes his challenge to a criminal, speedy-trial claim and asserts
that the delay in bringing him to trial is so extraordinary that prejudice is
presumed, citing to Doggett v. United States, 505 U.S. 647 (1992), and United
- 40 -
States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994). Assuming case law on a
defendant‘s right to a speedy criminal process provides an appropriate framework
in which to analyze this claim, we conclude that Morel is not entitled to relief.
The term ―presumptively prejudicial,‖ as used by the United States Supreme
Court in Doggett, simply marks the point at which courts may deem delay
unreasonable enough to trigger a further inquiry pursuant to Barker v. Wingo, 407
U.S. 514 (1972). See Doggett, 505 U.S. at 651-52. In Doggett, the Supreme Court
cited to Barker for the proposition that when evaluating whether a Sixth
Amendment speedy trial violation has occurred, a court must make four separate
inquiries, which must be weighed and balanced: (1) whether the delay was
uncommonly long; (2) whether the State or the defendant was more to blame for
the delay; (3) whether the defendant properly asserted his right to a speedy trial;
and (4) whether the defendant suffered prejudice as a result of the delay. Id. at
650. Until the delay is determined to be presumptively prejudicial, however, there
is no necessity for an inquiry into the other Barker factors. Id. at 652 n.1.
The Supreme Court in Doggett concluded that the eight-and-a-half-year
delay between the defendant‘s indictment and arrest was sufficiently long to trigger
a Barker inquiry as presumptively prejudicial. Although the defendant could not
point to any specific prejudice he incurred as a result of the delay, the Court held
that the defendant was nevertheless entitled to relief because the government‘s own
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negligence caused a ―delay six times as long as that generally sufficient to trigger
judicial review.‖ Id. at 658. In Mohawk, the United States Court of Appeals for
the Ninth Circuit actually rejected the argument that Doggett‘s reasoning applied to
a claim predicated upon a ten-year appellate delay after the defendant‘s original
trial was completed. 20 F.3d at 1488. Although the delay in Mohawk, as in
Doggett, was attributable solely to the government, the Ninth Circuit concluded
that an appellant must show actual trial prejudice in the event of a second
prosecution in order to win outright dismissal of his indictment on the grounds of
appellate delay. Id. at 1485, 1488.
In the present case, the now nearly ten-year pretrial delay Morel experienced
creates a presumption of prejudice triggering an inquiry pursuant to Barker.
However, a consideration of whether the State or Morel was more to blame for the
delay and whether Morel properly asserted his right to a speedy trial weighs
heavily against him. See King v. DeMorales, CV 08-4984-TJH (JEM), 2010 WL
4916624, at *18 (C.D. Cal. May 3, 2010) (attributing the three-year delay in
holding civil commitment hearing to the numerous motions the defendant filed
while representing himself, including motions pertaining to his conditions of
confinement and several motions to disqualify); Coleman v. Mayberg, No. C 013428 SBA(PR), 2005 WL 1876061, at *8 (N.D. Cal. Aug. 8, 2005) (attributing
five-year delay in sexually violent predator civil commitment trial to defendant
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because he neither asserted his right to a speedy trial nor objected to any
continuances). During relinquishment, Morel himself acknowledged that at no
point did he ever demand a reinstatement of his right to have a timely trial and that
his goal has always been to receive treatment without a trial.
As to prejudice, the Supreme Court in Barker recognized three common
forms of arguable prejudice: ―oppressive pretrial incarceration,‖ ―anxiety and
concern of the accused,‖ and ―the possibility that the [accused‘s] defense will be
impaired‖ by dimming memories and loss of exculpatory evidence, the last of
which the Court described as the ―most serious‖ because ―the inability of a
defendant adequately to prepare his case skews the fairness of the entire system.‖
Barker, 407 U.S. at 532; see also Doggett, 505 U.S. at 654. Morel does not discuss
these forms of prejudice; instead, indefinite detention without treatment is the
primary prejudice he claims to have endured. However, we have already rejected
his argument that the treatment offered to noncommitted detainees is inadequate.
We do recognize that the length of pretrial confinement in this case based on
nothing more than an ex parte probable cause determination pushes the outer
bounds of due process and could be construed as oppressive, but this recognition
―must be balanced and assessed in light of the other Barker factors, including the
reasons and responsibility for the delay.‖ Coleman, 2005 WL 1876061, at *10.
We therefore conclude that on balance, the fact that Morel sought to purposefully
- 43 -
delay his trial defeats his claim for relief. See, e.g., King, 2010 WL 4916624, at
*18 (―[A]lthough Petitioner describes the conditions of his confinement as harsh,
this factor (as well as any anxiety and concern he suffered) must be assessed in
light of his own responsibility for the delay.‖); Page v. Lockyer, 200 F. App‘x 727,
728 (9th Cir. 2006) (concluding that even if a six-year period of pretrial detention
were sufficient to satisfy the element of oppression, petitioner was not entitled to
relief because he caused the delay and failed to meaningfully assert his right to
receive a speedy trial); Coleman, 2005 WL 1876061, at *10 (finding that the
petitioner‘s five-year detention during sexually violent predator proceedings did
not meet the Barker prejudice prong when petitioner was responsible for the
delay).
Unlike the government-induced delay in both Doggett and Mohawk, here,
Morel acquiesced to the indefinite postponement of trial and never once sought to
recapture his right to be brought to trial in a timely manner. Morel could have, at
any time, ended the delay and avoided any prejudice caused by the passage of
time. He should not be permitted to take advantage of the protracted delay he had
a large hand in creating. Accordingly, we affirm the denial of relief on this claim.
III. CONCLUSION
In short, we agree with the circuit court‘s well-reasoned conclusion in this
case that ―Morel holds the key to his cell. He can go to trial (whenever he wants),
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prevail and be released or, if he is committed after trial, he is entitled to continue
with his sex offender treatment with a view toward reaching ‗maximum therapeutic
benefit.‘ ‖ The circuit court properly determined that ―for tactical reasons, Morel
has delayed his trial for years‖ and that his ―commitment trial should proceed
[since] all reasonable avenues have been explored by the defense.‖ Accordingly,
we affirm the judgment of the Twelfth Judicial Circuit Court denying Morel‘s
emergency petition for a writ of habeas corpus, but refer the matter of ensuring
compliance with the requirements of both the Act and the Jimmy Ryce Rules of
Procedure to the appropriate rules committees.
It is so ordered.
PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.
PARIENTE, J., specially concurs with an opinion, in which PERRY, J., concurs.
CANADY, C.J, LEWIS, and POLSTON, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., specially concurring.
I fully concur in the majority‘s conclusion that neither the Jimmy Ryce Act
(Act) nor the Constitution requires the type of treatment Morel seeks as a
noncommitted detainee. I also agree with the majority that because Morel and his
attorney have been the driving force behind his extended pretrial delay, relief is not
warranted under the facts of this case. However, going forward, we cannot and
- 45 -
should not tolerate inordinate delays in bringing Jimmy Ryce respondents to trial
when, during that delay, the respondent remains in legal limbo as a precommitted
detainee—even where the respondent agrees with or asks for the delay.
To put this case in context, Jimmy Ryce respondents are individuals who
have completed their criminal sentences, and, but for the Act, would have had the
right to be released from the State‘s custody and control. If either the court or a
jury finds the respondent to be a sexually violent predator, then he or she cannot be
released until there is a subsequent determination made by the court that his or her
―mental abnormality or personality disorder has so changed that it is safe for the
person to be at large.‖ § 394.917(2), Fla. Stat. (2011). Conversely, if the
respondent is not found to be a sexually violent predator, then he or she has a right
to immediate release. Keeping an individual detained for years and years without
ever bringing him or her to trial offends basic notions of due process. We would
not tolerate such delay in a criminal case, and we should not tolerate it in a Jimmy
Ryce case. Both the Legislature and this Court have made clear that these trials
should occur expeditiously.
Currently, the Department of Children and Family Services (DCF) houses
detained and committed residents in what has been termed a $62-million, ―state-ofthe-art facility‖ that opened in April 2009. Concerns about the adequacy of the
sexual offender treatment program—one of the cornerstones of the Act—were
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apparently addressed and resolved after a class action lawsuit was brought and
settled in federal court. As of February 2011, DCF‘s facility housed 663 residents,
386 of whom were committed and consenting to treatment (a 77% participation
rate) and 159 of whom were pretrial detainees. The treatment provider, who
contracts with DCF, receives $100 per day for all residents, regardless of whether
those residents are detained or committed. This costs the State over $36,000 per
resident, per year, or, when based on 663 residents, an approximate cost of almost
$24 million per year.
Since the inception of the Act, 700 individuals have been released from
detention. Interestingly, just thirty-two residents have actually completed all four
phases of the sexual offender treatment program, and of those thirty-two, only
eighteen have received a letter of maximum therapeutic benefit. Therefore, it
would appear that the vast majority of Jimmy Ryce respondents who have been
released have done so not through successfully completing the four-phase
treatment regimen, but by prevailing at trial, obtaining a court-ordered release with
stipulated conditions, receiving a trial court determination that they no longer meet
the criteria of being a sexually violent predator, or returning to prison.
In addition to highlighting how this state‘s system for the civil commitment
of sexually violent predators is currently functioning, I write separately because
our resolution of Morel‘s case does not fully resolve the Second District‘s concerns
- 47 -
that originally brought the case before this Court. As the Second District explained
when certifying the Twelfth Judicial Circuit Court‘s judgment to this Court:
This case is an extreme example, but from our anecdotal
experience, it is not unique. The statute contemplates that detainees
will receive a speedy trial and then will receive annual reviews. §
394.918, Fla. Stat. (1999–2010). Once the right to the thirty-day trial
is waived, however, these proceedings often seem to take many years.
The fact that the detainee is being held sometimes hundreds of miles
from the trial forum does not facilitate timely resolution of these
cases. If [DCF] is not providing treatment during this delay, a pretrial
detainee may not actually hold the keys to the cell in which he is
civilly detained.
In re Commitment of Morel, 67 So. 3d 1062, 1064 (Fla. 2d DCA 2010) (footnotes
omitted). This observation raises two additional issues.
The first issue relates to whether the Twelfth Judicial Circuit, where both
DeSoto County and the Florida Civil Commitment Center (FCCC) are located,
continues to be the appropriate jurisdiction for all noncommitted detainees to file
habeas petitions that raise challenges to protracted pretrial delay. To resolve this
problem, I would recede from Murray v. Regier, 872 So. 2d 217 (Fla. 2002), to the
extent that Murray precludes a Jimmy Ryce respondent from filing a habeas
petition challenging the failure of his or her trial to progress in the circuit where his
or her commitment trial is pending; I would adopt Justice Quince‘s dissenting
opinion in that case.
The second issue relates to whether Florida‘s circuit courts, which handle
Jimmy Ryce proceedings, have instituted proper procedures in order to sufficiently
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minimize the need for such challenges. To address this issue, I would require all
trial judges who have Jimmy Ryce respondents awaiting trial to hold monthly
status hearings after the expiration of the 120-day outer time limit for trial to
ensure that any further delays are necessary only to prevent a manifest injustice.
I first address my concern about where jurisdiction lies for the purpose of
habeas petitions that specifically challenge aspects of pretrial delay during ongoing
civil commitment proceedings. As the Second District observed, a petition to
establish the State‘s right to detain an individual must be filed in the circuit where
the individual was last convicted of a sexually violent offense. See §§ 394.913(2),
394.9135(3), Fla. Stat. (2002). The FCCC, which is the State‘s primary facility for
housing persons who are awaiting civil commitment trials under the Act, has only
one location, in DeSoto County within the jurisdiction of the Twelfth Judicial
Circuit Court. Because the offenses qualifying a defendant for commitment under
the Act occur throughout the state of Florida, ―it is not unusual for . . . the circuit
court in DeSoto County . . . to have no territorial jurisdiction over the forum in
which the civil proceeding is pending.‖ In re Commitment of Morel, 67 So. 3d at
1063. Despite the Twelfth Judicial Circuit Court‘s lack of territorial jurisdiction,
the Second District noted that detainees nevertheless call upon that court to take
steps ―to regulate or issue orders to other circuit courts throughout the State
concerning petitions pending in those other circuits.‖ Id. at 1064.
- 49 -
This procedural quirk originates from the Legislature‘s creation of a
bifurcated system for the civil commitment of sexually violent predators. Under
the Act, the State Attorney and the respondent are both parties to a commitment
proceeding that takes place in the circuit where the Jimmy Ryce respondent was
last convicted of a sexually violent offense. See generally §§ 394.913(2)-(3),
394.9135(3), 394.914, 394.916(5), Fla. Stat. (2011). Of course, issues that stem
from the commitment proceeding in general, such as complaints about the failure
of a trial to progress, should be raised in the circuit court where that proceeding is
pending—as this is the court that has jurisdiction with the power to act.
DCF, on the other hand, is not a party to the actual commitment proceeding,
but, by statute, is the entity that retains legal custody of the respondent after a
probable cause determination has been made and while the respondent awaits trial.
See § 394.915(1), Fla. Stat. (2011) (―If the judge determines that there is probable
cause to believe that the person is a sexually violent predator, the judge shall order
that the person remain in custody and be immediately transferred to an appropriate
secure facility if the person‘s incarcerative sentence expires.‖). But see State Dep‘t
of Children & Family Servs. v. Jackson, 790 So. 2d 535, 537 n.3 (Fla. 2d DCA
2001) (―As the entity responsible for operating the facilities that house those
detained under the Act, DCF has an interest in the proceedings.‖). Once a
respondent is adjudicated as a sexually violent predator, the respondent‘s original
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commitment proceeding concludes, and DCF is then charged with his or her longterm control, care, and treatment. See § 394.917(2), Fla. Stat. (2011). Issues
concerning the conditions of confinement, such as those that relate to the adequacy
of DCF‘s treatment regimen or facilities, are outside the scope of both the
commitment proceeding and the State Attorney‘s role.
Prior to 2002, Jimmy Ryce respondents lacked a statutory remedy for
challenging the conditions of their confinement as established by DCF. That
changed in 2002, when the Legislature added section 394.9215, Florida Statutes, to
the Act, providing respondents with an avenue for raising confinement issues
through habeas corpus. See ch. 2002-36, § 1, Laws of Fla. Pursuant to section
394.9215(1), Florida Statutes (2011), a respondent held in one of DCF‘s secure
facilities is authorized to file a petition for habeas corpus alleging that the
―conditions of confinement violate a statutory right under state law or a
constitutional right under the State Constitution or the United States Constitution.‖
Respondents must file these petitions in the circuit court for the county in which
the facility is located. See § 394.9215(1)(a), Fla. Stat. (2011). Since DCF
currently houses all detainees awaiting trial at the FCCC in DeSoto County, the
practical application of this provision means that habeas petitions brought by
detainees under section 394.9215 must be filed in the Twelfth Judicial Circuit
Court.
- 51 -
The terms of 394.9215, which are clearly directed at redressing the wrongs
DCF commits while a respondent is in that entity‘s custody, simply cannot apply to
challenges to the commitment proceeding itself, such as in a case where a
respondent complains about the failure of his or her commitment trial to progress
in a timely manner. DCF is not a party to the actual commitment proceeding and
would presumably lack any control over the proceeding or knowledge of the
reasons for the delay. Accordingly, Jimmy Ryce respondents who seek to raise
constitutional challenges to the delay in being brought to trial and request release
from custody as a remedy must seek relief under the traditional principles of
habeas corpus. See Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006) (―[I]f the
prisoner alleges entitlement to immediate release, a petition for writ of habeas
corpus is the proper remedy.‖). That is, respondents wishing to challenge pretrial
delay should not be confined by the terms of section 394.9215, which only dictates
where habeas petitions must be filed when asserting a challenge to the conditions
of the detainee‘s confinement.
Without referring to section 394.9215, which was newly enacted at the time,
this Court in Murray, 872 So. 2d at 221-22, recognized that habeas corpus is the
proper method for challenging the legality of pretrial detention under the Act. In
that case, while awaiting his Jimmy Ryce trial in Miami-Dade County, which is
within the jurisdiction of the Third District Court of Appeal, petitioner Murray was
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being detained in a state treatment center located within the jurisdiction of the
Fourth District Court of Appeal. Id. at 219. During his detention, Murray filed a
petition for a writ of habeas corpus in the Fourth District seeking his pretrial
release from the treatment center based upon an alleged violation of his
constitutional right to due process. Id. at 219-20. Initially, the Fourth District
concluded that it did not have jurisdiction over the circuit court that ordered
Murray‘s pretrial detention and transferred the habeas petition to the Third District.
Id. at 220. The Third District concluded that it lacked jurisdiction over the habeas
petition because Murray was not confined in the court‘s territorial jurisdiction and
transferred the petition back to the Fourth District. Id. Upon receipt of the
transfer, the Fourth District again dismissed the petition, holding that it did not
have jurisdiction. Id.
On review, this Court quashed the Fourth District‘s decision, reasoning that
a ―detainee should not be foreclosed from raising a constitutional claim pretrial if
the resolution of that claim could end a lengthy pretrial detention‖ because ―the
traditional purpose of the writ of habeas corpus is to furnish a speedy hearing and
remedy to one whose liberty is unlawfully restrained.‖ Id. at 222. Relying on
statements made in a prior decision, this Court further recognized that although
―the right to habeas relief ‗is subject to certain reasonable limitations consistent
with [its] full and fair exercise,‘ it ‗should be available to all through simple and
- 53 -
direct means, without needless complication or impediment, and should be fairly
administered in favor of justice and not bound by technicality.‘ ‖ Id. at 221
(quoting Haag v. State, 591 So. 2d 614, 616 (Fla. 1992)). The Court held that
―[b]ecause Murray [was] being detained in the territorial jurisdiction of the Fourth
District Court of Appeal and he rais[ed] constitutional issues regarding his
detention, the Fourth District Court was the proper court to rule upon his petition
for habeas corpus.‖ Id. at 222-23.
Justice Quince dissented, concluding that because the Third District was the
district court with appellate jurisdiction over the circuit court for Miami-Dade
County that entered Murray‘s order of confinement, the Third District had
jurisdiction to resolve his pretrial habeas petition. See id. at 224 (Quince, J.,
dissenting). In reaching this conclusion, Justice Quince analogized Murray‘s
pretrial habeas challenge to a criminal defendant‘s challenge for postconviction
relief. Id. at 225. Justice Quince noted that before this Court‘s adoption of the
prior version of Florida Rule of Criminal Procedure 3.850, criminal defendants
were required to file petitions for writ of habeas corpus in the county where they
were incarcerated. Id. Under the new rules of criminal procedure, however, a
defendant is required to file a motion for postconviction relief in the same court
that imposed the judgment or sentence that the defendant is collaterally attacking
because that court ―is considered the ‗best equipped‘ to consider that defendant‘s
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collateral attack.‖ Id. For these same reasons, Justice Quince explained, this Court
should also have required a Jimmy Ryce respondent ―to seek habeas relief in the
appellate court having territorial jurisdiction over the circuit court that issued an
order of confinement or commitment.‖ Id. In her view, requiring a respondent to
seek habeas relief challenging confinement in the jurisdiction where he or she is
confined would ―put an unfair burden on those jurisdictions where such facilities
are located, as in the case of Jimmy Ryce Act confinements, because most of the
individuals are confined in one facility.‖ Id. at 225-26.
The majority‘s bottom-line conclusion in Murray was that the location
where an individual is being detained under the Act is the location where
jurisdiction lies for the purpose of bringing a habeas petition raising a
constitutional challenge to confinement prior to trial. It follows then that because
the facility‘s location is situated in the proper jurisdiction, a detained individual
must file a habeas petition in that venue. In my view, however, the analogy Justice
Quince drew in her dissenting opinion in Murray applies with equal force to
situations where, as here, an individual wishes to challenge the failure of his or her
trial to progress in a timely manner.
One need not look beyond the facts of this case for support of this
conclusion. When certifying the Twelfth Judicial Circuit Court‘s judgment to this
Court, the Second District observed that it had virtually no record information
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about the causes of delay in this case, that it did not even know the name of the
attorney representing Morel in Broward County, and that it did not see how this
matter could be fairly resolved for all parties without a hearing involving the
circuit court in Broward County. See In re Commitment of Morel, 67 So. 3d at
1063-64. After accepting jurisdiction, a majority of this Court agreed with the
Second District and decided to relinquish jurisdiction to the circuit court in
Broward County as the ―most appropriate forum‖ to hear the issues raised by
Morel‘s continued detention. Morel v. Sheldon, 59 So. 3d 1082, 1083 (Fla. 2011).
As with postconviction challenges raised by criminal defendants, authorizing an
individual civilly detained under the Act to file a habeas petition challenging the
constitutionality of lengthy pretrial delay in the circuit where his or her
commitment trial is pending is not only logical, but would also serve to simplify
and expedite the process. Indeed, that court would appear to be the only court with
the power to remove any impediments to the expeditious resolution of a Jimmy
Ryce proceeding pending there.
I acknowledge that the holding in Murray complies with the rule of law that
a petition for a writ of habeas corpus should be filed in the circuit where the
individual is being detained, since a circuit outside of that territorial jurisdiction
generally lacks the authority to rule upon the petition. See Alachua Reg‘l Juvenile
Det. Ctr. v. T.O., 684 So. 2d 814, 816 (Fla. 1996) (―If a prisoner files a habeas
- 56 -
corpus petition in circuit court, the petition must be filed in the circuit court of the
county in which the prisoner is detained.‖); Torres v. State, 700 So. 2d 1247, 1248
(Fla. 5th DCA 1997) (―Only the circuit court within the county where he is
incarcerated has jurisdiction.‖); see also § 79.09, Fla. Stat. (2011) (―Before a
circuit judge the [habeas] petition and the papers shall be filed with the clerk of the
circuit court of the county in which the prisoner is detained.‖); Philip J. Padovano,
Florida Appellate Practice § 30:6, at 756 (2011 ed.) (―A circuit court judge in one
circuit may not issue a writ of habeas corpus to order the release of a party
detained in another.‖). But in Murray, this Court also recognized the
complementary principle that the right to habeas relief ―should be available to all
through simple and direct means, without needless complication or impediment,
and should be fairly administered in favor of justice and not bound by
technicality.‖ 872 So. 2d at 221 (quoting Haag, 591 So. 2d at 616).
Therefore, I agree with the Second District that the ―circuit court in DeSoto
County should not be expected, and presumably lacks the power, to regulate or
issue orders to other circuit courts throughout the State concerning petitions
pending in those other circuits.‖ In re Commitment of Morel, 67 So. 3d at 1064.
The facts of the present case clearly demonstrate that matters relating to the failure
of a trial to progress can be more easily resolved in the circuit court where the
detained individual‘s commitment trial is pending. I would thus recede from
- 57 -
Murray to the extent it precludes the circuit court in which an individual‘s
commitment trial is pending from resolving habeas petitions that raise claims of
inordinate pretrial delay.
My second concern in this case relates to whether this Court and Florida‘s
circuit courts have instituted adequate procedures to safeguard against the risk of
excessive delay in bringing a Jimmy Ryce respondent to trial. By any measure,
Morel‘s nearly ten-year delay in going to trial is unreasonable and implicates the
rights guaranteed to every individual under the Due Process Clause. Although the
testimony offered at the evidentiary hearing conclusively established that after
Morel waived his right to have a trial within thirty days, he purposely sought to
thwart the timely resolution of his commitment proceeding, I am still troubled by
the State Attorney‘s and trial court‘s apparent assent to this delay for such a
prolonged period of time.
When discussing a criminal defendant‘s Sixth Amendment right to a speedy
trial, the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 529
(1972), observed that ―the primary burden [is] on the courts and the prosecutors to
assure that cases are brought to trial.‖ I see no reason why this principle should
apply with any less force to the civil commitment process of alleged sexually
violent predators. Civil detainees retain greater liberty protections than individuals
detained under the criminal process, see Youngberg v. Romeo, 457 U.S. 307, 321-
- 58 -
24 (1982), and criminal defendants detained pretrial retain greater liberty
protections than convicted ones, see Bell v. Wolfish, 441 U.S. 520, 535-36 (1979).
It therefore ―stands to reason that an individual detained awaiting civil
commitment proceedings is entitled to protections at least as great as those
afforded to a civilly committed individual and at least as great as those afforded to
an individual accused but not convicted of a crime.‖ Jones v. Blanas, 393 F.3d
918, 932 (9th Cir. 2004). Just as we would not condone the delay of a criminal
trial for nearly ten years, absent extraordinary circumstances, we should not
tolerate a similar delay in the civil commitment of an alleged sexually violent
predator who has already served his or her criminal sentence.
I agree with the majority that a proper construction of rules 4.240 and 4.260
of the Jimmy Ryce Rules of Procedure do not permit a trial court to authorize the
indefinite pretrial detention of a Jimmy Ryce respondent, even where a respondent
consents to the delay either through seeking a continuance or entering a waiver.
These rules, however, do not relieve the State, which prosecutes Jimmy Ryce
cases, or Florida‘s circuit courts, which oversee such cases, of their respective
duties to ensure that these matters be resolved efficiently and expeditiously,
notwithstanding a respondent‘s conscious decision to delay the process.
Even after a waiver is entered, both the Act and the Jimmy Ryce Rules of
Procedure require that in order for the original trial date to be continued beyond
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120 days, the trial court must find that a manifest injustice would otherwise occur.
See § 394.916(2), Fla. Stat. (2011); Fla. R. Civ. Pro. Inv. Comm. of Sexually
Violent Pred. 4.260. Where a party requests that such a continuance be granted, I
would urge the circuit court to at that point conduct a case management
conference. If, after the conference, the court determines that the circumstances of
the case warrant a finding of manifest injustice, I would further urge the court to
then place the case on the docket every thirty days to conduct a status hearing in
order to monitor its progression.
To be sure, other methods for facilitating the timely resolution of Jimmy
Ryce cases exist as well. For example, the record in this case reflects that in
response to this Court‘s January 2011 order of relinquishment, on February 3,
2011, Judge Jack Tuter conducted a status hearing to examine the status of the
Jimmy Ryce cases currently pending in the Seventeenth Judicial Circuit Court.
During this hearing, Judge Tuter, an assistant state attorney, and an assistant public
defender were present to discuss the status of thirteen pending Jimmy Ryce cases.
After being apprised of the status of each of these cases, Judge Tuter devised a
plan to hold a similar status hearing approximately every eight weeks.
The above procedures demonstrate the ease with which circuit courts can
facilitate the timely resolution of these types of cases while, at the same time,
tempering the risk of due process violations. Therefore, I would recommend that
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all of Florida‘s circuit courts begin to implement similar procedures. While a
respondent‘s initial waiver of the thirty-day time limit may be beneficial, in that
the respondent and his or her counsel may need more than just thirty days to
prepare an adequate defense, courts simply cannot allow this kind of waiver to
become a subterfuge for indefinite pretrial delay.
In this case, I fully agree with the majority‘s conclusion that as a
noncommitted detainee, Morel is not entitled to the treatment he seeks and that as
the chief proponent of the pretrial delay he experienced, his right to due process
has not been violated. Nevertheless, my concerns regarding the effect of this
Court‘s decision in Murray and whether circuit courts have put in place procedures
to minimize the risk of inordinate pretrial delay remain.
PERRY, J., concurs.
Certified Judgments of Trial Courts in and for DeSoto County – James S. Parker,
Judge, Case No. 09-CA 091 – An Appeal from the District Court of Appeal,
Second District, Case No. 2D09-2096
Philip J. Massa, Director, Regional Counsel, and Jay Patrick Reynolds, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth
District, West Palm Beach, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Susan Adams Maher, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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