         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-5172
                 _____________________________

REGINALD A. WALKER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.

                       February 5, 2019


PER CURIAM.

    AFFIRMED.

WOLF and M.K. THOMAS, JJ., concur; MAKAR, J., concurs with
opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________
MAKAR, J., concurring with opinion.

     Reginald A. Walker, who was convicted of sexual battery in
1991, was later voluntarily designated a sexual violent predator
and thereby subject to civil commitment under the Jimmy Ryce
Act and held in custody by the Department of Children and
Families (DCF). In 2014, he was placed in custody of the
Department of Corrections (due to a conditional release violation)
where he continues to be held. In 2017, he claimed eligibility for
the statutorily-required annual DCF evaluation of his mental
condition and fitness to return to society despite being currently in
prison; he would have this right if held in DCF’s custody. See §
394.918(1), Fla. Stat. (“A person committed under this part shall
have an examination of his or her mental condition once every year
or more frequently at the court's discretion.”). As the Second
District has held, on a question of first impression, a sexually
violent predator who is in prison on a new offense is not entitled to
an annual evaluation. The court noted that “Florida statutes do
not specify the procedure to employ for a person already
determined to be a sexually violent predator, but in prison again
for new offenses.” Jackson v. State, 166 So. 3d 906, 910 (Fla. 2d
DCA 2015). It concluded, however, that when a sexually violent
predator is “in prison for new offenses, nothing would be gained by
conducting the evaluation and related court proceedings” because
he “would not be entitled to immediate release.” Id. Here, it does
not appear from the record that Walker is entitled to immediate
release, nor is it clear when his potential release from prison—and
return to DCF custody—is anticipated. As such, I concur and agree
that affirmance of the denial of Walker’s requested relief is
appropriate, and, as in Jackson, we need “not address what
procedures DCF must follow when [Walker’s] release from prison
becomes imminent.” Id. (noting that “given the dearth of case law
addressing these peculiar circumstances and the lack of specific
guidance in the applicable statute, the legislature may wish to
explore this issue.”).

                  _____________________________




                                 2
Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




                             3
