       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 24, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1556
                        Lower Tribunal No. 10-10696B
                            ________________


                                     M.G.,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

      Weil, Gotshal & Manges LLP, and Edward Soto and Lauren Alexander, for
appellant.

      Pamela Jo Bondi, Attorney General, and Nikole Hiciano and Marlon J.
Weiss, Assistant Attorneys General, for appellee.


Before SUAREZ, EMAS and FERNANDEZ, JJ.

     EMAS, J.
      M.G., a human trafficking victim, appeals from an order denying a petition

to expunge her criminal history record, filed pursuant to section 943.0583, Florida

Statutes (2017) (“the Human Trafficking Victim Expunction Statute”). We affirm

because, while that statute generally permits the trial court to exercise its discretion

in ordering the expunction of criminal history records of human trafficking

victims, the trial court correctly determined that the plain language of the statute

excludes expunction of criminal history records related to the offense of

kidnapping.

      FACTUAL AND PROCEDURAL BACKGROUND

      The following facts appear to be undisputed for our purposes: For several

years, M.G. lived under the control of a human trafficker, Alexander Valdes

(“Valdes”).     While under his control, M.G. was arrested on three separate

occasions for offenses committed as part of a human trafficking scheme. The last

occasion was in 2010, when M.G. was arrested and formally charged with inter

alia, kidnapping, sex trafficking, and deriving support from the proceeds of

prostitution.

      M.G later entered into a negotiated plea agreement, which included her

cooperation with the State and her agreement to testify against Valdes. M.G.

pleaded guilty to sex trafficking, conspiracy to commit sex trafficking, and

deriving support from the proceeds of prostitution. As a part of the negotiated



                                           2
plea, the State nolle prossed the kidnapping charge. After serving her sentence,

M.G. petitioned the trial court to vacate and expunge all criminal history records

pursuant to the Human Trafficking Victim Expunction Statute, which permits a

trial court in its discretion to expunge the criminal history records of human

trafficking victims under certain circumstances.

      The evidence at the hearing revealed that M.G. became a victim of human

trafficking in 2007.    M.G.’s abusive and controlling boyfriend at the time,

Francisco Cruz (“Cruz”), convinced her to make adult films in order to earn more

money, as they were both financially unstable. After Cruz started working for

Valdes as a driver for his escort business, Cruz made M.G. join him while driving

to pick up women and take them to calls with men, allegedly as part of the scheme

to get M.G. accustomed to the business and “groomed” into being sold. Valdes

subsequently convinced M.G. that she could make a lot of money working for

him—a technique referred to as the “honeymoon” phase—where, as M.G.

described it, Valdes sold her “a dream, which was really a nightmare consisting of

violence, beatings, abuse, humiliation, and victimization.”

      M.G. became Valdes’ “bottom bitch.”1 She was required—among other

things—to always praise him in front of other women, to recruit other women to

1 M.G. was required to wear a necklace that said “bottom bitch.” In her testimony,
M.G. described a “bottom bitch” as “the woman that is with the pimp the longest
and it appears that [“bottom bitches”] have more privileges but really there is more
rules and we have to uphold his image and make sure that he’s seen well in front of

                                         3
work for Valdes, and to give all of her money from her forced sexual encounters to

him. M.G. was forbidden to look at other men in the eye, could not have any

friends, and all of her activities and interactions were controlled. If she broke any

of these rules, Valdes would beat her in front of the other women. He also forced

M.G. to take drugs and medications “in order to remain compliant with his

demands.” “He drugged [M.G.] into submission in order to sell [her] to make

money.” M.G. was required to have sex with five to ten men per day in order to

meet Valdes’ daily quota of earning him $1000.

      In early 2010, M.G. went in the car with Valdes to purchase marijuana at a

shoe repair shop in North Miami Beach. When he returned to the car after making

his purchase, he had another woman with him, K.D., who he found in an alley next

to the store. Valdes forced M.G. to befriend K.D and to convince K.D. to work

with Valdes. If M.G. did not comply, she would be beaten. M.G. complied, and

K.D. ultimately worked for Valdes for about a month.

      During her time working for Valdes, K.D.’s father put out missing person

flyers. One night, K.D. escaped from the hotel where she was working, returned to

her father, and told him that Valdes and M.G. kidnapped her and forced her into

prostitution. When Valdes and M.G. went out looking for K.D., they were arrested

and charged with several offenses, including sex trafficking and kidnapping.



other women.”

                                         4
      After their arrest, Valdes was still manipulating M.G. from jail, and

convinced her to not provide the authorities any information about their activities.

It was not until Valdes forged a letter to M.G.’s attorney, firing her attorney, that

M.G. started speaking to the State Attorney’s Office. She was still afraid to give

specific details for fear of Valdes’ vengeance, but over time she was able to share

more and more information about her victimization.

      Further, although M.G. did work in the restaurant industry following her

victimization, when she applied to school to obtain a degree in culinary arts, she

was not able to enroll because of her felony record.

      Following the hearing, the trial court granted M.G.’s petition with one

exception: the trial court denied the petition to expunge those criminal history

records related to the kidnapping charge. In the order, the trial court reasoned that

it was without discretion to order the expunction of those records, as the offense of

kidnapping is excluded from expunction under the Human Trafficking Victim

Expunction Statute. This appeal followed.

      STANDARD OF REVIEW

      The decision to grant or deny a petition to expunge criminal history records

is generally reviewed for an abuse of discretion.      See § 943.0583(2), Fla. Stat.

(2017).   However, to the extent such decisions are based upon questions of




                                         5
statutory interpretation, our standard of review is de novo. Kasischke v. State, 991

So. 2d 803, 807 (Fla. 2008).



      DISCUSSION

      The Human Trafficking Victim Expunction Statute, section 943.0583(3),

provides:

      A person who is a victim of human trafficking may petition for the
      expunction of a criminal history record resulting from the arrest or
      filing of charges for an offense committed or reported to have been
      committed while the person was a victim of human trafficking, which
      offense was committed or reported to have been committed as a part
      of the human trafficking scheme of which the person was a victim or
      at the direction of an operator of the scheme, including, but not
      limited to, violations under chapters 796 and 847, without regard to
      the disposition of the arrest or of any charges. However, this section
      does not apply to any offense listed in s. 775.084(1)(b)1.
      Determination of the petition under this section should be by a
      preponderance of the evidence. A conviction expunged under this
      section is deemed to have been vacated due to a substantive defect in
      the underlying criminal proceedings.

(Emphasis added.)2

      Subsection 775.084(1)(b)1., Florida Statutes (2017), provides for an

extended term of imprisonment for a defendant who qualifies as a habitual violent

felony offender:

2 Further, the Human Trafficking Victim Expunction Statute “does not confer any
right to the expunction of a criminal history record, and any request for expunction
of a criminal history record may be denied at the discretion of the court.” §
943.0583(2), Fla. Stat. (2017).


                                         6
      (b) “Habitual violent felony offender” means a defendant for whom
      the court may impose an extended term of imprisonment, as provided
      in paragraph (4)(b), if it finds that:

      1. The defendant has previously been convicted of a felony or an
      attempt or conspiracy to commit a felony and one or more of such
      convictions was for:

             a. Arson:
             b. Sexual battery;
             c. Robbery;
             d. Kidnapping;
             e. Aggravated child abuse;
             f. Aggravated abuse of an elderly person or disabled adult;
             g. Aggravated assault with a deadly weapon;
             h. Murder;
             i. Manslaughter;
             j. Aggravated manslaughter of an elderly person or disabled
             adult;
             k. Aggravated manslaughter of a child;
             l. Unlawful throwing, placing, or discharging of a destructive
             device or bomb;
             m. Armed burglary;
             n. Aggravated battery; or
             o. Aggravated stalking.

      (Emphasis added). It is this list of enumerated offenses which the legislature

relied upon in creating the exclusion provision in section 943.0583(3) of the

Human Trafficking Victim Expunction Statute.

      We agree with the trial court’s conclusion that section 943.0583(3) admits of

no ambiguity, and its plain language precluded the trial court from exercising its

discretion to grant expunction of M.G.’s criminal history records related to the

offense of kidnapping. “The cardinal rule of statutory construction is ‘that a statute



                                          7
should be construed so as to ascertain and give effect to the intention of the

Legislature as expressed in the statute.’” City of Tampa v. Thatcher Glass Corp.,

445 So. 2d 578, 579 (Fla. 1984) (quoting Deltona Corp. v. Florida Public Service

Comm’n, 220 So. 2d 905 (Fla. 1969)). “Legislative intent is the polestar by which

the court must be guided, and this intent must be given effect even though it may

contradict the strict letter of the statute.” State v. Webb, 398 So. 2d 820, 824 (Fla.

1981).

      In construing a statutory provision, a court must “first look to the actual

language used in the statute.” Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64

(Fla. 2005). “It is a fundamental principle of statutory construction that where the

language of a statue is plain and unambiguous there is no occasion for judicial

interpretation.” Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992).

      M.G. contends that the exclusion set forth in section 943.0583(3) applies

only if the petitioner was convicted of an offense listed in section 775.084(1)(b)1.,

and, because M.G. was charged but never convicted of a kidnapping offense, the

exclusion is inapplicable and the trial court had the discretion to grant expunction

of those criminal history records. We do not agree. The plain language of section

943.0583(3) provides that “this section does not apply to any offense listed in s.

775.084(1)(b)1.” (Emphasis added). We hold that this language unambiguously

refers to the list of offenses set forth in section 775.084(1)(b)1., and does not



                                          8
require that the petitioner be convicted of such offense. It is true that, in defining

whether a defendant qualifies as a “habitual violent felony offender,” that

subsection requires that a defendant be convicted of one of the listed offenses.

However, the requirement of a conviction in section 775.084(1)(b)1. is relevant

only to determining whether a defendant qualifies as a habitual violent felony

offender, and is wholly inapplicable to the Human Trafficking Victim Expunction

Statute and the incorporated list of offenses.3

      This is further supported by considering the remaining portions of section

943.0583(3):

      A person who is a victim of human trafficking may petition for the
      expunction of a criminal history record resulting from the arrest or
      filing of charges for an offense committed or reported to have been
      committed while the person was a victim of human trafficking, which
      offense was committed or reported to have been committed as a part
      of the human trafficking scheme of which the person was a victim or
      at the direction of an operator of the scheme, including, but not
      limited to, violations under chapters 796 and 847, without regard to
      the disposition of the arrest or of any charges.

      (Emphasis added.)

      As can be seen, the Human Trafficking Victim Expunction Statute addresses

expunction “of a criminal history record resulting from the arrest or filing of


3  Indeed, accepting M.G.’s proposed construction of the statute would require
engrafting not only the “conviction” requirement, but that entire phrase in section
775.084(1)(b)1.—meaning that the exclusion would apply (and expunction not
permitted) only if the “defendant has previously been convicted” of one of the
listed offenses.

                                           9
charges . . . without regard to the disposition of the arrest or of any charges.”

Surely, if the legislature intended to limit the exclusion to convictions for “any

offense listed in s. 775.084(1)(b)1.,” it could have and would have said so. See

State v. Chubbuck, 141 So. 3d 1163, 1171 (Fla. 2014); Hopkins v. State, 105 So.

3d 470, 474 (Fla. 2012); Gering v. State, 43 Fla. L. Weekly D1642 (Fla. 3d DCA

July 25, 2018).

      Finally, M.G. contends that her proposed construction of the exclusionary

language of section 943.0583(3) is consistent with the underlying intent of the

legislature—to afford victims of human trafficking as much relief as the law

allows. See H.B. 1327, 2013 Leg., Reg. Sess. (Fla. 2013)(“Persons who are

victims of human trafficking and who have been convicted of crimes committed at

the behest of their traffickers . . . face barriers to . . . life opportunities as long as

these criminal convictions remain on their record . . . .       [They should] have the

chance to rebuild their lives and reenter society.”)

      We cannot deny that permitting expunction of all of M.G.’s criminal history

records in this case would be consistent with the above-described legislative intent.

However, given the clear and unambiguous language of the statute, resort to

legislative intent is neither necessary nor permissible. See, e.g., Daniels v. Florida

Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005) (observing: “When the statute is

clear and unambiguous, courts will not look behind the statute's plain language for



                                           10
legislative intent or resort to rules of statutory construction to ascertain intent.”)

Under the present circumstances, “courts have no occasion to resort to rules of

construction—they must read the statute as written, for to do otherwise would

constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989,

990-91 (Fla. 1996). While we can certainly sympathize with M.G.’s tragic

circumstances and admire her determination in overcoming them, we cannot

substitute our judgment for that of the legislature. The construction of the statute

as urged by M.G. must be the result of legislative amendment, not judicial

pronouncement.

      CONCLUSION

      We agree with the trial court’s determination that no ambiguity exists, and

that expunction of criminal history records related to the offense of kidnapping is

precluded by the plain language of the statute. We find no merit in the other

argument raised by appellant.4

      Affirmed.




4See State v. Ford, 626 So. 2d 1338, 1345 (Fla. 1993) (observing: “All courts in
Florida possess the inherent powers to do all things that are reasonable and
necessary for the administration of justice within the scope of their jurisdiction,
subject to valid existing laws and constitutional provisions”)(emphasis added and
additional citations omitted).

                                         11
