          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4169
                  _____________________________

CHARLES VANSMITH,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari — Original Jurisdiction.

                           May 10, 2018


ROBERTS, J.

     The petitioner, Charles Vansmith, petitions this Court for a
writ of certiorari. The petitioner argues that the trial court
departed from the essential elements of law by using section
775.021(4)(a), Florida Statutes (2017), to determine that it still
had jurisdiction to keep him placed in a secure residential facility
based on section 916.303(3), Florida Statutes (2017). We find that
the trial court did not depart from the essential elements of law
and deny the petition.

     On June 5, 1996, the State charged the petitioner with having
committed two counts of lewd and lascivious acts in the presence
of a child on March 4, 1996. On July 17, 1996, the petitioner was
adjudged incompetent to proceed due to an intellectual disability.
On January 5, 2005, the petitioner was committed to a secure
residential facility, and the criminal charges against him were
dropped. At some point, the petitioner filed a motion with the trial
court to terminate jurisdiction. The petitioner argued that each of
his prior charges had a maximum sentence of fifteen years in
prison and he had been placed in a secure residential facility for
more than fifteen years. The petitioner argued that the trial court
only had jurisdiction for fifteen years based on section 916.303(3).
The trial court denied the motion finding that it had jurisdiction
for thirty years based on the court’s ability to structure sentences
consecutively in accordance with section 775.021(4)(a), which
prompted the petitioner to file the instant petition for writ of
certiorari.

     Certiorari is generally the proper procedural mechanism for
seeking review of an order that involuntarily commits a person.
Dep’t of Children & Families v. Ramos, 82 So. 3d 1121, 1122 (Fla.
2d DCA 2012); Woods v. State, 969 So. 2d 408, 409 (Fla. 1st DCA
2007). Certiorari review is only available when the petitioner
shows that the order under review (1) constitutes a departure from
the essential elements of law and (2) results in a material injury
for the remainder of the case, and (3) the harm cannot be remedied
on appeal. City of Freeport v. Beach Cmty. Bank, 108 So. 3d 684,
687 (Fla. 1st DCA 2013). The second and third prongs are what
provide this Court with jurisdiction, so those elements must be
analyzed first. Id.

     Because the petitioner’s liberty interests are at stake, this
Court has jurisdiction. Certiorari jurisdiction also lies when a
petitioner alleges that a trial court has acted in excess of its
jurisdiction. Dep’t of Children & Families v. Carmona, 159 So. 3d
165, 166 (Fla. 2d DCA 2015).

    The petitioner’s argument is predicated on the language
contained in section 916.303(3). When interpreting statutes, courts
focus on legislative intent. Crews v. State, 183 So. 3d 329, 332 (Fla.
2015). To discern legislative intent, a court first applies the plain
and obvious meaning of the statutory text. Id. If the language
provides a clear and unambiguous meaning, then the court will
apply that meaning without resorting to the rules of statutory
construction. Gaulden v. State, 195 So. 3d 1123, 1125 (Fla. 2016).
An ambiguity exists when reasonable people can find different

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meanings in the same language. Fla. Dep’t of Transp. v. Clipper
Bay Invs., LLC, 160 So. 3d 858, 862 (Fla. 2015). When there is an
ambiguity, a court may look to the cannons of statutory
interpretation and construction. Anderson v. State, 87 So. 3d 774,
777 (Fla. 2012).

    Section 916.303(3), states in relevant part:

    A defendant’s placement in a secure facility may not
    exceed the maximum sentence for the crime for which the
    defendant was charged.

     The phrase “maximum sentence” is not defined in chapter
916. The phrase “maximum sentence” also means “maximum
sentences” based on section 1.01(1), Florida Statutes (2017). Based
on the plain language of the relevant portion of section 916.303(3),
one could interpret the phrase “maximum sentence(s)” in two
different ways. One interpretation is the maximum sentence a
defendant could receive for each individual crime charged, and the
other interpretation is the maximum allowable sentence based on
a trial court’s sentencing structure. Since the relevant portion of
section 916.303(3) is ambiguous, this Court resorts to the rules of
statutory interpretation and construction.

     The legislative intent for chapter 916 is stated in section
916.105, Florida Statutes (2017). The language contained in this
section has remained relatively unchanged since it was enacted,
with the exception of the enactment of subsection (4), which was
added in 2006. See § 916.105, Fla. Stat. (1985-2017). Based on the
stated legislative intent, it appears the Legislature was
attempting to balance the rights and needs of the individuals with
the need to protect society. The Legislature found the need to
protect society so important that it made an escape or an
attempted escape from a secure facility a second-degree felony
when it enacted this section. See § 916.175, Fla. Stat. (1985). In
2006, the Legislature amended section 916.175 to require any
punishment that was imposed for an escape or attempted escape
to run consecutively to any former sentence that had been
imposed. See § 916.1081(2), Fla. Stat. (2006-2017).

    A well-known rule of statutory construction is that the
Legislature is presumed to know the statutes that are in existence
                                 3
at the time it enacts new legislation. Barnett v. Dep’t of Mgmt.
Servs., 931 So. 2d 121, 132 (Fla. 1st DCA 2006). The Legislature
enacted the relevant statutory language in 1983 in section
916.13(3). When the new language was added, it read:

    In no case may a client’s placement in a secure facility
    pursuant to this part exceed the maximum sentence for
    the crime for which he was charged.

     At the time, the Legislature enacted the above language in
section 916.13(3), trial courts had been authorized to structure
sentences consecutively under section 775.021(4) for seven years,
see section 775.021(4), Florida Statutes (1976), and singular
versions of words included the plural versions of words for decades,
see section 1.01, Florida Statutes (1941). Because sections
775.021(4) and 1.01(1) had been in existence before the Legislature
enacted the statutory language at issue, the Legislature is
presumed to have known that a trial court could determine that it
had jurisdiction for an extended period of time based on a
consecutive sentencing structure.

     The petitioner urges us to apply the rule of lenity, which is
codified in section 775.021(1). The rule of lenity is a canon of last
resort that requires any ambiguity in the statute to be resolved in
favor of a defendant. Kasischke v. State, 991 So. 2d 803, 814 (Fla.
2008).

     The rule of lenity applies to statutes that criminalize or
penalize criminal behavior. Albernaz v. United States, 450 U.S.
333, 342 (1981). Section 916.303 states:

    (1) The charges against any defendant found to be
    incompetent to proceed due to intellectual disability or
    autism shall be dismissed without prejudice to the state
    if the defendant remains incompetent to proceed within a
    reasonable time after such determination, not to exceed 2
    years, unless the court in its order specifies its reasons
    for believing that the defendant will become competent to
    proceed within the foreseeable future and specifies the
    time within which the defendant is expected to become
    competent to proceed. The charges may be refiled by the


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state if the defendant is declared competent to proceed in
the future.

(2) If the charges are dismissed and if the defendant is
considered to lack sufficient capacity to give express and
informed consent to a voluntary application for services
and lacks the basic survival and self-care skills to provide
for his or her well-being or is likely to physically injure
himself or herself or others if allowed to remain at liberty,
the agency, the state attorney, or the defendant’s
attorney shall apply to the committing court to
involuntarily admit the defendant to residential services
pursuant to s. 393.11.

(3) If the defendant is considered to need involuntary
residential services for reasons described in subsection
(2) and, further, there is a substantial likelihood that the
defendant will injure another person or continues to
present a danger of escape, and all available less
restrictive alternatives, including services in community
residential facilities or other community settings, which
would offer an opportunity for improvement of the
condition have been judged to be inappropriate, the
agency, the state attorney, or the defendant’s counsel
may request the committing court to continue the
defendant’s placement in a secure facility pursuant to
this part. Any placement so continued must be reviewed
by the court at least annually at a hearing. The annual
review and hearing must determine whether the
defendant continues to meet the criteria described in this
subsection and, if so, whether the defendant still requires
involuntary placement in a secure facility and whether
the defendant is receiving adequate care, treatment,
habilitation, and rehabilitation, including psychotropic
medication and behavioral programming. Notice of the
annual review and review hearing shall be given to the
state attorney and the defendant’s attorney. A
defendant’s placement in a secure facility may not exceed
the maximum sentence for the crime for which the
defendant was charged.


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     Based on the plain language contained in section 916.303, the
statute does not criminalize behavior. The petitioner has argued
that it punishes him because his liberty has been taken away.
Section 916.303(1) specifically allows charges to be reinstated if
the petitioner becomes competent. If section 916.303 punishes
criminal behavior, then the reinstatement of charges at a later
date would be a violation of the principles against double jeopardy.
Double jeopardy arguments have been advanced by civilly
committed individuals and have been reviewed by the United
States Supreme Court. In reviewing an argument that the Kansas
Sexually Violent Predator Act (the Act) subjected a person to
double jeopardy, the United States Supreme Court examined the
Act to determine if the Act was civil or criminal in nature. Kansas
v. Hendricks, 521 U.S. 346, 360-71 (1997). The United States
Supreme Court stated that even though a statute is placed within
the civil statutes, the label is not always dispositive. Id. at 361.
Since the person committed argued that he was being punished,
the court examined the objectives of the Act. Id. at 361-64. The
two primary objectives of criminal punishment are retribution and
deterrence. Id. at 361-62. Finding no evidence of retribution or
deterrence in the Act and that the Act was civil in nature, the
United States Supreme Court found that the Act did not violate
the principles against double jeopardy. Id. at 369-71.

     Even though section 916.303 is contained in the criminal
procedure and corrections section, that label is not definitive.
Upon examining sections 916.303 and 916.105, we find no evidence
of retribution or deterrence. Since there is no evidence of an intent
to punish a person who has been committed with the aid of section
916.303 and no evidence that section 916.303 criminalizes
behavior, section 775.021(1) does not apply.

     Based on the foregoing, we find that the Legislature intended
section 775.021(4)(a) to be applied when determining the
maximum sentence referred to in section 916.303(3). Since the
trial court determined the petitioner’s maximum sentence utilizing
section 775.021(4)(a), it did not depart from the essential elements
of law. Accordingly, the petitioner has failed to meet his burden,
and we deny the petition for writ of certiorari.

    DENIED.

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WOLF and WETHERELL, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Marcia M. Perlin, Assistant
Public Defender, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Steven Woods, Assistant
Attorney General, Tallahassee, for Respondent.




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