The Florida Bar
www.floridabar.org
The Florida Bar Journal
April, 2014 Volume 88, No. 4
Imposing Mandatory Sex Offender Probation Conditions on Youthful Offenders

by Richard Sanders

Page 20

The question addressed here is whether the mandatory sexual offender probation conditions contained in F.S. §948.30(1) must be imposed on defendants who are sentenced as youthful offenders. The article concludes that those conditions do not need to be imposed because §948.30(1) is superseded by the youthful offender statute.

Section 958.04(2) (emphasis added) provides in pertinent part:

In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court shall dispose of the criminal case as follows:

(a) The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than [six] years....

(b) The court may impose a period of incarceration as a condition of probation or community control....

(c) The court may impose a split sentence....

(d) The court may commit the youthful offender to the custody of the department for a period of not more than [six] years....

Section 948.30(1) (emphasis added) provides that, “for probationers...who are placed under supervision for [a] violation of [listed sexual offenses] the court must impose [a list of probation] conditions....” “Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation....”1

The question addressed here is which of the emphasized passages controls, the “in lieu of other criminal penalties” language in §958.04 or the “must impose” language in §948.30. In State v. Miller, 888 So. 2d 76 (Fla. 5th DCA 2004), the court concluded the “must impose” language controls and the probation conditions are mandatory for youthful offenders; this is the only reported decision on point.2 This article argues that the “in lieu of” language in §958.04(2) controls; these sex offender conditions are not mandatory for youthful offenders. The article suggests that the reasoning of Miller is flawed. Further, even if Miller was good law when it was decided, the law has changed.

Florida district courts have long recognized that the “in lieu of” language in §958.04 preempts otherwise mandatory sentencing laws, including drug trafficking minimum mandatory sentences and fines;3 the sentencing guidelines;4 firearm minimum mandatory sentences, including the 10/20/life statute;5 minimum mandatory prison terms for violent crimes against law enforcement officers;6 and statutes that require an adjudication of guilt.7 Florida courts have read the “in lieu of” language in this fashion since 1981, consistently “hold[ing] that the sentencing provisions of the Youthful Offender Act are the exclusive sanctions for defendants who meet its criteria.”8 These courts state that “chapter 958 [is] a separate statutory scheme for treatment of those young defendants to whom the act applies, regardless of the nature of their crimes.”9 This in turn means that the “sentencing provisions of the act are the exclusive sanctions that may be imposed in a youthful offender sentence…. Once a court classifies a defendant as a youthful offender, it is prohibited from imposing sanctions other than those of the Youthful Offender Act.”10

Thus, if the legislative history of an otherwise mandatory sentencing law does not reveal “any specific legislative intent that would allow the [otherwise mandatory] sentence to supersede a youthful offender sentence” — i.e., if “the [otherwise-mandatory] statute contains no language to supersede the youthful offender sentence” — then the otherwise mandatory sentencing “is not applicable when one is sentenced as a youthful offender.”11 Further, if “the two sentencing statutes are susceptible of differing constructions, [a] court must construe the statutes favorably to the accused…. Had the legislature desired to require [an otherwise mandatory sentencing provision be imposed on] youthful offenders,” it would and could expressly say so.12

As to what proves a specific legislative intent to require a mandatory sentence to be imposed on youthful offenders, Miller is the only case that holds a mandatory sentencing provision overrides the “in lieu of” language in the youthful offender statute. The other cases establish what statutory language does not override the youthful offender statute. The trafficking statute states defendants convicted of trafficking “shall be sentenced” to the relevant mandatory prison term and fine.13 Section 775.087(2) states qualifying defendants “shall be sentenced” to the applicable firearm mandatory prison term. The sentencing guidelines statute states the guidelines “shall be applied to all felonies, except capitol felonies....”14 Section 784.07 states, “Notwithstanding any other provision of law, any person convicted of aggravated assault [or aggravated battery] of a law enforcement officers shall be sentenced to a minimum term of” imprisonment.15 And §784.08(3) provides that, “[n]otwithstanding the provisions of s.948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld” for persons convicted of certain offenses against the elderly. But even though these statutes all use mandatory language, none of these provisions has been found to be sufficient to override the “in lieu of” language in §958.04.

Section 948.30(1) says the listed probation conditions “must [be] impose[d]” on defendants convicted of certain offenses. But if none of the statutory provisions just noted can be said to override the “in lieu of” language in the Youthful Offender Act, then surely the language in §948.30 is equally inadequate to indicate such a legislative intent. This conclusion is reinforced by the fact that §948.30 was first enacted in 1995, long after Florida courts had made quite clear the relationship between §958.04 and otherwise mandatory provisions in other sentencing statutes.16 By 1995, the legislature surely knew that if it wished to impose a mandatory sentencing provision on youthful offenders, it must expressly say so. But it did not expressly say so when creating these mandatory probation conditions. Nor has it said so in succeeding years, as Florida courts continue to state that otherwise mandatory sentencing laws do not apply to youthful offenders unless the legislature clearly states its intentions in that regard.

Thus, the “in lieu of” language in the youthful offender statute supersedes the mandatory probation conditions in §948.30. This conclusion is consistent with a long and unbroken line of cases interpreting this “in lieu of” language.

The only exception to this unbroken line of cases is the Miller case. With all due respect to that court, the analysis in Miller is flawed. Further, even if Miller can be said to have been correctly decided given the state of the law at the time, changes in the law since its decision lead to the conclusion that these probation conditions are not mandatory for youthful offenders.

Miller pled no contest to a violation of §800.04(4), a qualifying offense from the mandatory probation conditions. Under the plea agreement, Miller was “to be placed on six years probation as a youthful offender, to perform 150 hours of community service, to have no contact with the victim, to submit DNA samples, and to undergo a sexual offender evaluation.”17 At the sentencing, Miller asked the court not to impose the mandatory sex offender conditions and “argued that the plea offer did not compel the imposition of such conditions.”18 The state argued “that because the requirements of section 948.03(5) are mandatory when a defendant is placed on probation for a violation of section 800.04, a probationary placement that did not specifically include these requirements would be ‘an incomplete sentence’ [and] the court did not have the discretion to waive the requirements of the statute.”19 The trial court did not impose the conditions, relying on the “in lieu of” language to conclude “that the language of section 948.03(5) was, therefore, not mandatory if youthful offender sentencing is utilized.”20 The Fifth District Court of Appeal held the trial court erred in this regard:

Our task, of course, is to adopt an interpretation that harmonizes the related statutes while giving effect to each.... Here, we believe that any conflict that might at first blush appear to exist between the statutes can be appropriately reconciled….

Under [chapter 958] a trial court may sentence a [qualifying] defendant... to sanctions designed to improve the “chances of correction and successful return to the community.” See § 958.01, Fla. Stat. (2002). The term, “probation,” is defined in section 958.03(4) as a means of community supervision requiring specified contacts with probation personnel “and other terms and conditions as provided in s. 948.03.” Section 958.04 ... then contains the following language dealing with the subject of probation for youthful offenders:

“(2) In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court shall dispose of the criminal case as follows:

(a) The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years....”

Thus, it is quite clear that the legislature fully intended to authorize various forms of probation as described in section 948.03....

Section 948.03(5) [requires mandatory probation conditions be imposed on people convicted under section 800.04]. As this court has recently noted, “in a case involving sex offender probation, the trial court must impose certain legislatively mandated conditions; the statute does not allow for judicial discretion.” See Woodson v. State, 864 So. 2d 512, 515 (Fla. 5th DCA), review granted, 879 So. 2d 626 (Fla. 2004).

Thus, there is no conflict between the statutes. The Florida Youthful Offender Act specifically recognizes that youthful offenders on probation are subject to the provisions of section 948.03. Section 948.03(5) requires mandatory sex offender conditions upon the conviction of any of the enumerated offenses. Therefore, if a person treated as a youthful offender is convicted of any of the enumerated sex offenses, the conditions of probation described in section 948.03(5) must be imposed. Cf. DeJesus v. State, 862 So. 2d 847 (Fla. 4th DCA 2003)(sex offender statute was applicable to defendant sentenced as youthful offender where defendant entered into negotiated plea that included probation with sex offender conditions).

Mr. Miller points us to certain other cases holding that penalties required by the 10/20/Life Statute, or mandating a three-year minimum prison term for use of a firearm during the commission of a crime, do not apply to persons sentenced as youthful offenders. [Citations omitted]. The foundation for those decisions, however, was that a youthful offender sentence was to be used “in lieu of other criminal penalties,” and in the absence of any legislative intent to override this provision, these enhanced penalties could not be imposed. In the present case, on the other hand, the requirements of section 948.03 are specifically engrafted into the Florida Youthful Offender Act by Chapter 958. The legislative intent is clear on the face of the statute.21

There are several problems with this reasoning.

The basic problem is the failure to recognize that a general authorization for a trial court to impose probation is not the same as requiring a trial court to impose certain probation conditions that are mandatory for adults. Section 958.04(2)(d) also authorizes trial courts to “commit the youthful offender to the custody of the department for a period of not more than [six] years.” However, the case law universally recognizes that this general authorization does not require trial courts to impose otherwise mandatory prison terms (even if they are less than six years).

It is true that, when Miller was decided, “[t]he term, ‘probation,’ was defined in section 958.03(4) as a means of community supervision requiring specified contacts with probation personnel ‘and other terms and conditions as provided in s. 948.03’”;22 then-extant §948.03(5) was the section containing the mandatory sex offender conditions. But, as noted above, those mandatory conditions were moved to §948.30 in 2004, and §958.03(4) was left unchanged. Thus, even if we say that, when Miller was decided, §958.03(4) both 1) referred to the mandatory sexual offender conditions and 2) intended to require those conditions be applied to youthful offenders, the current statutory scheme leads one to the opposite conclusion.

At best, current §958.03(4) says that only the probation conditions contained in §948.03 are mandatory for youthful offenders. If the legislature had meant to say the probation conditions in §948.30 are also mandatory, it would have said so in 2004, when it moved those mandatory conditions from §949.03(5) to §948.30. Put another way, even if “the requirements of section 948.03 were specifically engrafted into the Florida Youthful Offender Act by Chapter 958”23 when Miller was decided, and even if they are still so “engrafted” today (meaning the mandatory conditions listed in §948.03 apply to youthful offenders), the mandatory sex offender conditions are not contained in §948.03; they are in §948.30. Section 948.30 is not now, and has never been, “specifically engrafted into the Florida Youthful Offender Act by Chapter 958.” And, again, given the history of Florida courts’ interpreting the “in lieu of” language to override otherwise mandatory sentencing provisions, the failure to expressly note §948.30 in the youthful offender statute (or to note the youthful offender statute in section 948.30) shows a clear legislative intent not to make these probation conditions mandatory for youthful offenders. At the least, there is sufficient ambiguity on the point to invoke the rule of lenity, which would mean the provision must be interpreted in defendants’ favor.24

Further, even looking at §948.03 as it was when Miller was decided, it is a stretch to say that §958.03(4) was intended to make the sex offender conditions mandatory for youthful offenders. In 2003, §948.03(1) listed 15 conditions of probation, only 13 of which were considered mandatory. Section 948.03(2) provided that the conditions of community control “may include but [are] not limited to” several conditions. Section 948.03(3) gave the court discretion to impose electronic monitoring. Thus, while “probation” may be “defined in section 958.03(4) as a means of community supervision requiring specified contacts with probation personnel ‘and other terms and conditions as provided in s. 948.03,’” it does not follow that §958.03(4) meant that all the “other terms and conditions as provided in s. 948.03” were mandatory for youthful offenders (given that all the “other terms and conditions in s. 948.03” are not even mandatory for adults). To say that, by definition, the concept of probation “requires” that some terms and conditions be imposed is not the same as saying probation “requires” certain particular terms and conditions to be imposed. In sum, even as matters stood when Miller was decided, it is more logical to read §958.03 as meaning a trial court may — but is not required to — impose some or all of the conditions listed in §948.03 when it puts a youthful offender on probation or community control.

It is true that §958.04(2)(a) (emphasis added) says a trial court “may place a youthful offender...on probation...under such conditions as the court may lawfully impose.” But this is hardly a solid foundation for concluding §958.04(2) constitutes a clear indication of legislative intent to override the “in lieu of” language and make the sex offender probation conditions mandatory for youthful offenders. Indeed, the “may” language reinforces the conclusion at the end of the preceding paragraph: The legislature intended to give trial courts full discretion regarding the probation conditions they impose on youthful offenders.

The cases the Miller court cites do not support its conclusion. The Miller court’s reliance on Woodson is misplaced because that case involved an adult offender.25 As to the DeJesus case, DeJesus argued that §943.0435, the sexual offender registration statute “cannot be applied to him because he was sentenced as a youthful offender.”26 The court rejected that argument as follows:

First, the defendant entered into a negotiated plea, which included both youthful offender and sex offender probation. The defendant did not timely file a motion to withdraw his plea and he has therefore failed to preserve this issue for appeal. See Fla. R. App. P. 9.140(b)(2)(A).

Second, the defendant’s reliance on C.C.M. v. State, 782 So. 2d 537 (Fla. 1st DCA 2001), to suggest that a youthful offender sentence prohibits the imposition of conditions set forth in the sexual offender statute, is misplaced. C.C.M. held that the sexual offender statute was inapplicable to juvenile proceedings. However, the youthful offender sentence is an adult — not a juvenile — sentence.27

To the extent DeJesus can be said to have addressed the merits of this issue, that discussion is dictum. And any discussion of the merits of the issue is superficial at best, which is unsurprising as the court concluded the issue was not preserved. Further, because DeJesus’ only argument was to rely on C.C.M., DeJesus did not address, even in dictum, the argument made here. Finally, DeJesus addressed the applicability of §943.0435 — which requires persons designated as sexual offenders to follow certain registration requirements — to defendants sentenced as youthful offenders. However, the “in lieu of” language in §958.04(2) applies only to “criminal penalties.” Section 943.0435 does not impose a criminal penalty; rather, it is “nonpunitive” and “procedural in nature.”28 Thus, the fact that a youthful offender may have to register as a sex offender under §943.0435 is irrelevant to the issue of whether the sex offender conditions in §948.30 trump the “in lieu of” language in the youthful offender statute.

As to the rules of statutory construction that apply here, we may start with the following:

The intent of the Legislature is the polestar of statutory construction.... To discern this intent, the Court looks “primarily” to the plain text of the relevant statute, and when the text is unambiguous, our inquiry is at an end.... However, if a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.... “The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”...As part of this inquiry, we must address the legislation “as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence.”29

The Miller court avoided all the potential problems here by concluding there was no conflict between §948.30 and §958.04(2). The problems with that reasoning were noted above. Again, the primary problem is that, under this reading, there would be no conflict between §958.04(2) and any minimum mandatory prison sentence statute that required a sentence of less than six years.

As noted above, the case law universally reaches the opposite conclusion with regard to these mandatory prison statutes. However, the courts have never discussed why they reach this conclusion. There are two possibilities: 1) There is no conflict between §958.04(2) and a mandatory prison sentence statute because the “in lieu of” language categorically overrides all mandatory prison statutes (at least in the absence of a clearly stated contrary legislative intent); or 2) there is a conflict between the two statutes but §958.04(2) prevails in this conflict because....

This latter question has not been addressed. One answer might be found in the rule that states “where two statutory provisions are in conflict, the specific statute controls the general statute [and] the more recently enacted statute controls the older statute.”30 It might be said that §958.04(2) is the “specific” statute that controls over the “general” otherwise mandatory sentencing statute. Of course, one might also plausibly argue that the mandatory sentence statute is the “specific” statute, which applies only to certain “specific” offenses, that controls over the “general” youthful offender statue, which applies “generally” to all offenses. Thus, it is not clear what answer the specific/general distinction mandates.

One might also argue that §958.04(2) is the most recent statute, at least as of the time when this line of cases originated. This was true in 1981, when the first case on point31 held that §958.04(2) (enacted in 1978)32 trumped the three-year firearm minimum mandatory in §775.087 (enacted in 1974).33 Applying this most recent statute logic in the current context might lead to conflicting results. We could argue that §948.30, as the most recent statute, controls here and the probation conditions are mandatory for youthful offenders. Or we could argue that, as noted above, the most recent legislative action relevant here was the moving of these mandatory conditions from §948.03(5) to §948.30, with no concomitant amendment to §958.04(2) to indicate any legislative intent to make these conditions mandatory for youthful offenders. This assumes that Miller was right in concluding that the statutory provisions as they stood when Miller was decided did in fact establish a clear legislative intent to make those probation conditions mandatory for youthful offenders. Even if Miller was right in this regard, the 2004 relocation of these mandatory conditions, without a concomitant amendment to §958.04(2), indicates a clear legislative intent to no longer make these probation conditions mandatory for youthful offenders. This conclusion follows because §958.03(4), which defines “probation” for purposes of the youthful offender statute, refers only to the probation conditions listed in §948.03.

In any event, several of the other mandatory sentencing provisions noted above were enacted after §958.04(2), but the courts nonetheless concluded they did not apply to youthful offenders. This indicates that the courts are not relying on the most recent statute logic when concluding that the “in lieu of” language controls any conflicts here.

The continued holdings that §958.04(2) trumps otherwise mandatory sentencing provisions are supported by two rules of construction: 1) “[T]he legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute”;34 and 2) “the legislature is presumed to pass subsequent enactments with full awareness of all prior enactments and an intent that they remain in force.”35 In other words, courts assume that when the legislature now enacts mandatory sentencing laws, it is doing so with the knowledge (based on a long line of cases) that Florida courts will not apply these mandatory laws to youthful offenders unless the legislature expressly tells them to. Thus, this may simply be a straightforward application of the doctrine of in pari materia, with the courts “address[ing] the legislation as a whole, including the...history of its enactment, and the state of law already in existence.”36

The bottom line is this: An otherwise mandatory sentencing law will not be applied to a youthful offender unless the legislature makes it clear, specifically and expressly, that it intends for that to happen. There is nothing in §948.30 to establish a clear legislative intent to override the “in lieu of” provisions of the youthful offender statute. The mandatory provisions in §948.30 do not apply to defendants sentenced as youthful offenders.


1 Fla. Stat. §948.30 (2013) (emphasis added).

2 Because this is the only reported decision on point, this case establishes the law binding on all Florida trial courts at this time. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992).

3 Inman v. State, 842 So. 2d 862 (Fla. 2d DCA 2003).

4 Kepner v. State, 577 So. 2d 576 (Fla. 1991).

5 State v. Wooten, 782 So. 2d 408 (Fla. 2d DCA 2001).

6 State v. Gertz, 972 So. 2d 212 (Fla. 5th DCA 2008).

7 State v. Blackburn, 965 So. 2d 231 (Fla. 4th DCA 2007).

8 Whitlock v. State, 404 So. 2d 795, 796 (Fla. 3d DCA 1981) (holding a firearm mandatory does not apply to youthful offenders).

9 E.g., Ellis v. State, 475 So. 2d 1021, 1023 (Fla. 2d DCA 1985).

10 Mendez v. State, 835 So. 2d 348, 349 (Fla. 4th DCA 2003).

11 Wooten, 782 So. 2d at 410.

12 Blackburn, 965 So. 2d at 232.

13 E.g., Fla. Stat. §893.135(1)(a)1.

14 Fla. Stat. §921.001(4)(a) (1987).

15 Fla. Stat. §§784.07(2)(c), (d) (2013).

16 These mandatory probation provisions were originally located in §948.03(5). Ch. 95-283, §59, Laws of Fla. They were moved to §948.30 in 2004. Ch. 2004-373, §18, Laws of Fla. As discussed below, this renumbering may be significant for present purposes.

17 Miller, 888 So. 2d at 77.

18 Id.

19 Id. Again, these mandatory probation conditions were originally located in Fla. Stat. §948.03(5); they were moved to
Fla. Stat. §948.30 in 2004.

20 Id.

21 Id. at 77-78 (emphasis added).

22 Id. at 77.

23 Id. at 78.

24 Fla. Stat. §775.021(1) (2013) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”).

25 Woodson went to the Florida Supreme Court on a possible conflict but the Court eventually dismissed after initially granting review. Woodson v. State, 889 So. 2d 823 (Fla. 2004).

26 DeJesus, 862 So. 2d at 848.

27 Id. at 849 (citations omitted).

28 Givens v. State, 851 So. 2d 813, 814-15 (Fla. 2d DCA 2003) (holding the retroactive application of section 943.0435 to defendants whose crimes occurred before its effective date was not an ex post facto violation because §943.0435 is not a criminal penalty).

29 E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009) (citations omitted).

30 Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000) (citations omitted).

31 Whitlock, 404 So. 2d at 796.

32 Ch. 78-84, Laws of Fla.

33 Ch. 74-383, §9, Laws of Fla.

34 Ford v. Wainwright, 451 So. 2d 471, 475 (Fla. 1984).

35 Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 294-251 (Fla. 1987).

36 E.A.R., 4 So. 3d at 629 (citations omitted).

Richard Sanders graduated from the University of Pennsylvania Law School in 1982. He is currently an assistant public defender from the 10th Circuit handling criminal appeals.

[Revised: 03-27-2014]