                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

WILLIAM JUNIOR BARBER,                  NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Petitioner,                       DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D16-2063

STATE OF FLORIDA,

     Respondent.
___________________________/

Opinion filed June 30, 2016.

Petition for Writ of Prohibition -- Original Jurisdiction.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender,
Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney
General, Tallahassee, for Respondent.




PER CURIAM.

      William Junior Barber seeks review of the trial court’s order denying his motion

to dismiss an involuntary civil commitment petition filed against him under the Jimmy

Ryce Act. §§ 394.910-932, Fla. Stat. He claims that he was not in lawful custody at

the time the commitment process was initiated, rendering the petition untimely and

compelling his immediate release. We disagree, and deny the petition.
      In May 2013, Barber was arrested and charged with one count each of

kidnapping and sexual battery. The arrest report stated that Barber approached the

victim, a homeless woman, and dragged her into an alcove behind a building, where he

forced her to perform oral sex on him. Over a year later, pursuant to a negotiated plea,

the kidnapping charge was dropped and Barber entered a guilty plea to the lesser

offense of felony battery in lieu of sexual battery.

      At the sentencing hearing, held on Thursday, September 11, 2014, the trial court

accepted Barber’s plea and sentenced him to 493 days’ imprisonment with 493 days’

credit for time served. At sentencing, the trial court advised Barber that he could be

subject to involuntary civil commitment under the Jimmy Ryce Act as a result of his

plea, and Barber indicated that he understood. Defense counsel noted that Barber

understood the possibility that he might remain in confinement for several days while

being processed out.

      The hearing concluded at 10:23 a.m., and within a matter of hours, at 3:53 p.m.,

the Florida Department of Children and Families (“DCF”) notified the State Attorney,

the Florida Department of Corrections, and the Florida Civil Commitment Center

(“Center”) that because Barber may qualify for involuntary commitment under the

Jimmy Ryce Act, DCF was issuing a detainer against him. See § 394.9135(1), Fla.

Stat. At approximately 9:35 p.m., Barber was transferred from the Duval County Jail

and transported to the Center.




                                           2
      On Monday, September 15, 2014, the DCF’s Multidisciplinary Team submitted

its written assessment and recommendation to the State Attorney, finding that Barber

met the definition of a sexual predator under the Act. See § 394.9135(2), Fla. Stat. The

next day, September 16, 2014, at 11:06 a.m., the State Attorney filed a petition with the

circuit court, alleging Barber to be a sexually violent predator. Id. § 394.9135(3). 1

      Almost six months later, on March 6, 2015, Barber moved to dismiss the state’s

petition, which the trial court denied on April 20, 2015. Rehearing was denied on July

15, 2015. Nine months later, Barber’s “Emergency Petition for Writ of Prohibition”

was filed in this Court on May 9, 2016.

      Barber raises three issues. First, he asserts the State’s civil commitment petition

failed to meet the prerequisites for declaring him a sexually violent predator. Second,

he claims that the State’s petition was untimely. Finally, he argues that at the time of


1
  One of the psychiatric reports conducted as part of the Multidisciplinary Team’s
investigation included a detailed case history for Barber. The report found that Barber
had been charged with a total of six crimes with an apparent sexual motivation dating
back to 1998. Of these, five included, inter alia, sexual battery charges involving
multiple instances of Barber forcing his victims to engage in oral, vaginal, and anal sex
with him, occasionally at weaponpoint, and one included a charge of attempted sexual
battery. At least three of the victims were described in the report as being homeless, all
were strangers to Barber whom he approached in public places, and in two cases, all
charges were dropped due to the victims being unable to be located. In one case, the
sexual battery charge was dropped due to the victim’s prostitution conviction and
Barber was convicted of simple battery only, receiving a sentence of six months’
imprisonment; the report cites a letter to the victim from the State Attorney indicating
that the state elected to drop the charge because the victim failed to report the
conviction to law enforcement, and because, the letter indicated, her testimony could
have been impeached on the basis of the conviction. In the remaining cases, Barber
was able to plead down to reduced battery charges for reasons that are not made clear
in the report.
                                            3
his transfer to the Center, he was not in “lawful custody” and that he is therefore

entitled to immediate release under Reed v. State, 159 So. 3d 845 (Fla. 1st DCA 2014)

(certifying a question of great public importance), rev. granted, 160 So. 3d 898 (Fla.

2014), rev. dismissed, 161 So. 3d 397 (Fla. 2015). As to this latter point, he asserts

that his sentence (for time served) immediately expired at the conclusion of the

sentencing hearing, and from that moment onward, his custody was unlawful,

precluding the State from initiating a Jimmy Ryce Act proceeding against him. 2

      As to the first issue, we conclude that the State’s petition complied with the

requirements of section 394.9135(1)(a), Florida Statutes. As the State concedes, this

section provides the only statutory grant of authority that could apply to Barber’s

situation, thereby rendering compliance with other subsections (394.9135(1)(b),

394.9125(1), and 394.9125(2)) immaterial. Subsection (1)(a) states:

      If the anticipated release from total confinement of a person who has been
      convicted of a sexually violent offense becomes immediate for any
      reason, the agency with jurisdiction shall upon immediate release from
      total confinement transfer that person to the custody of the department to
      be held in an appropriate secure facility.


§ 394.9135(1)(a), Fla. Stat. (2014). This subsection applies because Barber’s

anticipated release from total confinement became “immediate” due to the imposition


2
  In supplemental briefing, Barber claimed for the first time that his 493-day sentence
should have expired the day before the hearing at which sentence was actually
imposed. This issue was not preserved for our review, but we note that “[a] sentence
of imprisonment shall not begin to run before the date it is imposed, but the court
imposing a sentence shall allow a defendant credit for all of the time she or he spent in
the county jail before sentence.” § 921.161(1), Fla. Stat. (2014).
                                           4
of the time served sentence; and he was transferred “upon immediate release” to DCF’s

custody.

      Barber asserts, however, that subsection (1)(a) cannot apply because his

conviction for felony battery was not a “sexually violent offense,” which the statute

seemingly requires. But a review of the applicable definition of “sexually violent

offense” undermines this argument. That definition says that a “sexually violent

offense” is “[a]ny criminal act that, either at the time of sentencing for the offense or

subsequently during civil commitment proceedings under this part, has been

determined beyond a reasonable doubt to have been sexually motivated.”

§ 394.912(9)(h), Fla. Stat. (2014) (emphasis added). The italicized language reflects

that for purposes of the Jimmy Ryce Act a “sexually violent offense” includes any

criminal act (including Barber’s felony battery conviction) that is “subsequently”

determined to be proven “beyond a reasonable doubt to have been sexually

motivated.” 3 Here, the State’s petition alleges that Barber has at least two convictions

of felony battery in his criminal history, supported by factual assertions that they were

sexually motivated. In addition, the Multidisciplinary Team’s report alleges two other

criminal convictions with allegations of sexual motivations, for a total of four

convictions for crimes with apparent sexual motivations.4 We conclude that the State’s


3
   A “sexually motivated” crime is one whose purpose, in part, “was for sexual
gratification.” § 394.912(8), Fla. Stat. (2014).
4
  As mentioned in footnote one supra, charges in two of the six offenses described in
the report were dismissed in their entirety due to an inability to locate the victims.
                                           5
petition is facially valid under the authority of section 394.9135(1)(a).

        As to the second issue, Barber argues that the State’s petition was untimely (by

less than an hour) because it was not filed within the 120-hour time limit in section

394.9125(4)(a), Florida Statutes. But section 394.9125 does not apply. Instead,

section 394.9135 applies with its own, distinct time table (with rounding-up

provisions)     for   the    Multidisciplinary       Team   to    provide    its   written

assessment/recommendation (72 hours) 5 and for the State Attorney thereafter to file a

petition (48 hours). 6 Here, Barber was transferred on Thursday, September 11, 2014,

resulting in the 72-hour period ending on a weekend, Sunday, September 14, 2014.

Accordingly, the Multidisciplinary Team’s assessment/recommendation had to be filed

“within the next working day,” which was Monday, September 15, 2014. The


5
    Section 394.9135(2), Florida Statutes, states:

        Within 72 hours after transfer pursuant to paragraph (1)(a) . . . the
        multidisciplinary team shall assess whether the person meets the
        definition of a sexually violent predator. If the multidisciplinary team
        determines that the person does not meet the definition of a sexually
        violent predator, that person shall be immediately released. If at least two
        members of the multidisciplinary team, after all clinical evaluations have
        been conducted, determine that the person meets the definition of a
        sexually violent predator, the team shall provide the state attorney, as
        designated by s. 394.913, with its written assessment and
        recommendation within the 72-hour period or, if the 72-hour period ends
        after 5 p.m. on a working day or on a weekend or holiday, within the next
        working day.
6
  “Within 48 hours after receipt of the written assessment and recommendation from
the multidisciplinary team, the state attorney, as designated in s. 394.913, may file a
petition with the circuit court alleging that the person is a sexually violent predator and
stating facts sufficient to support the allegation.” § 394.9135(3), Fla. Stat. (2014).
                                             6
completed assessment/recommendation was filed on that Monday morning.7 The State

Attorney had 48 hours from the receipt of the assessment/recommendation to file a

petition. Its petition, filed at 11:06 a.m. on Tuesday, September 16, 2014, was not only

timely, but a day early.

      Finally, Barber argues he was not in lawful custody at the time of his transfer to

the Center, and was therefore not “totally confined” as contemplated by subsection

394.9135(1)(a). Like the petitioner in Reed, Barber asserts that he is entitled to

immediate release. Unlike Reed, which involved a situation where an inmate was not

transferred until the day after his sentence had ended, the proceedings against Barber

were initiated the same day that his incarceration would have otherwise ended. In

Reed, this Court held that the trial court lacked jurisdiction because Reed’s sentence

had expired the day prior to his transfer; as such, he was not in “lawful custody.” As

noted in Reed, our supreme court in State v. Phillips, 119 So. 3d 1233, 1236-37 (Fla.

2013), held that “lawful custody under section 394.9135(1) requires the State to initiate

commitment proceedings prior to the expiration of sentence date.” (Emphasis added).

Because Barber’s transfer took place on the same day that he was sentenced, his

sentence date had not yet expired. Indeed, Florida Administrative Code Rule 33-

603.412, provides that a “sentence expires at midnight, but release may be granted at

any hour on such release date.” Barber was not granted release before midnight;


7
   The record reflects that the Multidisciplinary Team proceeded with diligence,
initiating its review on Friday, September 12, 2014, and completing and filing one of
two psychiatric reports over the weekend.
                                           7
instead, the record reflects that Barber did not object to remaining incarcerated for a

few more days and understood that commitment proceedings would probably be

initiated against him. To accept Barber’s argument, that he was no longer in lawful

custody after the sentencing hearing concluded at 10:23 a.m., would render section

394.9135 irrelevant, which was specifically written to provide transfer authority in

situations where an “immediate” release occurs, such as Barber’s time-served sentence.

Finding no basis for relief, we deny Barber’s petition.

   PETITION DENIED.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.




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