       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    CHARLES MICHAEL PHILLIPS,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3530

                           [October 21, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 562011CA001507A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

HERSCH, RICHARD, Associate Judge.

    Phillips appeals from an order finding him to be a sexually violent
predator (SVP) under the Involuntary Civil Commitment of Sexually Violent
Predators Act, sections 394.910-.931, Florida Statutes (2010) (the “Act”),
and committing him to the Florida Civil Commitment Center. Phillips
raises no issues contesting the sufficiency of the evidence or the
procedures utilized at trial in reaching such a commitment. Rather,
Phillips argues only that he was not lawfully confined at the time of
initiation of the SVP proceedings and that a lack of jurisdiction precludes
the commitment. Because we find that Phillips was lawfully under “total
confinement” as the result of Chapter 916 proceedings, we affirm the trial
court’s order committing Phillips.

                      Facts and Procedural History

   In 1995, Phillips was charged with one count of burglary while armed
with a deadly weapon and two counts of sexual battery while armed with
a deadly weapon. He forced his way into the home of a 21-year-old woman
at knife point and forcibly raped her. A search of his residence revealed
handwritten notes indicating surveillance of women in the area, including
notations concerning physical attributes, time of day, and detailed
descriptions of women’s residences. At trial, the jury rejected his defense
of insanity and found him guilty as charged. Phillips received a sentence
of 154 months of imprisonment to be followed by 20 years of probation.

   Released from prison in June of 2004, it did not take long for Phillips
to violate his probation. In July 2004, he showed symptoms of psychosis
and was taken into police custody by way of the Baker Act. It was alleged
that he violated his probation by failing to take medications prescribed as
part of his mental health treatment plan. In December 2004, he admitted
to the violation and the trial court modified his probation to include
community control sanctions.

   Four months later, a second affidavit for violation of probation alleged
that Phillips had absconded from his community control by leaving his
residence and discarding his electronic monitor. The trial court ordered
evaluations for both competency and sanity. The appointed doctors found
Phillips competent to participate in proceedings, but insane at the time of
the violation.

   On January 30, 2006, the trial court, pursuant to Florida Rule of
Criminal Procedure 3.217 and the stipulation of the parties, entered an
order finding Phillips not guilty by reason of insanity of the probation
violation. Pursuant to Rule 3.218 and section 916.15, Florida Statutes
(2004), Phillips was committed to the Department of Children and Families
(“DCF”) for hospitalization and treatment. In its January 30, 2006 order,
the court made all requisite findings, retained jurisdiction, and directed
that Phillips not be discharged or released from commitment by DCF
without further order of the court.1

    After a year, DCF informed the court that Phillips no longer met the
criteria for continued hospitalization. On March 8, 2007, the trial court
entered an order, pursuant to Florida Rule of Criminal Procedure 3.219
and section 916.17, Florida Statutes (2004), placing Phillips on conditional
release. This order provided for, among other things, a supervised living


1   In this order the court also terminated Phillips’ probation. An order
reinstating the probation was entered in March 2007 following Phillips’ release
from the hospital. Phillips contests the validity of this reinstatement. Since we
find the confinement at time of initiation of SVP proceedings was not pursuant
to his probation, but rather, was the result of his DCF re-hospitalization, we do
not reach the propriety of the 2007 probation reinstatement.


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arrangement, monitoring by DCF, continued medication regimen,
adherence to the law, continued court-ordered evaluations, and retention
of jurisdiction, all pursuant to the statute. Phillips agreed, in writing, to
the requirements of the conditional release, including re-hospitalization in
the event that his mental health deteriorated.

    From April 2007 until July 2008, Phillips was monitored by the mental
health court. In July of 2008, Phillips was arrested for aggravated stalking
and violation of probation. After meeting the victim online, Phillips
barraged her with text messages, e-mails and phone calls, many
containing disturbing psychotic ideations. The victim became increasingly
concerned, and after one e-mail in which Phillips commented about being
accused of raping a minor, the victim discovered Phillips was registered on
a sex offender web page. The victim notified the police. Phillips continued
to text the victim even after being told by the police to stop. He remained
incarcerated until August 2009, when he admitted the violation of
probation and once again was placed on conditional release.

   Phillips’ next violation of probation was for harassing phone calls in
February 2010. After meeting a dancer at a club in Port St. Lucie, Phillips
began to call her “fifty plus times a day,” filling up her voice mail with
sexually suggestive songs. After the victim became aware of Phillips’
sexual battery convictions and recent incarcerations, she requested that
he stop contacting her. Phillips continued his onslaught of harassing
calls. During one subsequent conversation Phillips asked: “Do you want
to be next?” Interpreting this as a threat of a sexual battery, the victim
called police.

   Before Phillips could be arrested on the harassing phone call charges,
he was arrested in Palm Beach County for resisting arrest without violence
and trespass. These two charges, as well as leaving his county of residence
without permission, and the harassing phone calls, formed the four
violations alleged in a February 10, 2010 affidavit of violation.

   Finally alerted that Phillips was not doing well on conditional release,2
the mental health judge ordered evaluations to determine if re-
hospitalization was warranted. On April 6, 2010, Phillips was ordered into
DCF custody for involuntary hospitalization and treatment. He remained
in DCF custody under this order until commencement of SVP proceedings



2  Phillips had filed a notice of intent to rely on insanity in defense of the third
probation violation affidavit.


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were initiated by way of the State’s Petition for Involuntary Commitment
under Chapter 394 in June 2011.

    Phillips raised the lawfulness of his confinement at the time of initiation
in a Motion to Dismiss Petition for Involuntary Civil Commitment in the
SVP action. Pointing out that the January 30, 2006 order committing him
to DCF custody also terminated his probation, Phillips alleged a complete
absence of jurisdiction over him by the circuit court from that point
onward and that, as a result, his subsequent re-hospitalization was void.
If his custody with DCF was unlawful, Phillips argued, then the SVP court
had no jurisdiction over him and the civil commitment action should be
dismissed.

   The trial court denied Phillips’ motion, finding:

      [T]he Respondent was in the lawful and secure custody of the
      Department of Children and Families at the time of the filing
      of the Petition and the issuance of the Order Finding Probable
      Cause and the issuance of the Warrant for Detention based
      upon the continuous chain of jurisdiction by the Circuit Court
      from the outset of the original conviction, sentence, and
      proper involuntary commitments.

   The action proceeded to jury trial and the trial court ultimately entered
an order committing Phillips to the Florida Civil Commitment Center as an
SVP. As noted earlier, Phillips does not contest the sufficiency of the
evidence that led to this finding.

                                  Analysis

    The Sexual Violent Predator Act applies “to all persons currently in
custody who have been convicted of a sexually violent offense, as that term
is defined in s.394.912(9), as well as to all persons convicted of a sexually
violent offense and sentenced to total confinement in the future.” §
394.925, Fla. Stat. (2004). Thus, it is not required that the current
confinement be for a sexually violent offense. See Hale v. State, 891 So.
2d 517 (Fla. 2004); Tabor v. State, 864 So. 2d 1171 (Fla. 4th DCA 2004).

   “‘Total confinement’ means that the person is currently being held in
any physically secure facility being operated or contractually operated for
the Department of Corrections, the Department of Juvenile Justice, or the
Department of Children and Family Services. . . .” § 394.912(11), Fla. Stat.
(2004). However, such confinement must be lawful in order for the State
to commence commitment proceedings. See Larimore v. State, 2 So. 3d

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101 (Fla. 2008). For example, where it is later determined that additional
gain-time should have been applied to an offender’s prison sentence and
that, had appropriate application been made, the inmate would not have
been in custody, SVP proceedings may not be initiated. Larimore, supra;
State v. Phillips, 119 So. 3d 1233 (Fla. 2013); Morel v. State, 138 So. 3d
1122 (Fla. 4th DCA 2014) (correction of illegal sentence resulting in
expiration of sentence prior to placement of hold and transfer to
Commitment Center rendered SVP without jurisdiction to proceed); Bishop
v. Sheldon, 68 So. 3d 259 (Fla. 2d DCA 2010).

   Phillips argues that the SVP court had no jurisdiction over him because
his confinement at the time of initiation of proceedings was unlawful.
Specifically, he complains that if his probation terminated on January 30,
2006, any subsequent confinement would be unlawful. Phillips overlooks
that his confinement with DCF at the time of initiation in June 2011 was
not a result of his probation, but rather, the result of a Chapter 916
commitment.

   Florida Rule of Criminal Procedure 3.217(b) provides, in salient part:

      When a person is found not guilty of the offense or is found
      not to be in violation of probation or community control by
      reason of insanity, if the court then determines that the
      defendant presently meets the criteria set forth by law, the
      court shall commit the defendant to the Department of
      Children and Family Services or shall order outpatient
      treatment at any other appropriate facility or service, or shall
      discharge the defendant. . . .

Chapter 916 provides the statutory basis for such commitment. Section
916.15 addresses this commitment as follows:

      (1) A defendant who is acquitted of criminal charges because
      of a finding of not guilty by reason of insanity may be
      involuntarily committed pursuant to such finding if the
      defendant is mentally ill and, because of the illness, is
      manifestly dangerous to himself or herself or others.

      (2) Every defendant acquitted of criminal charges by reason
      of insanity and found to meet the criteria for involuntary
      commitment may be committed and treated in accordance
      with the provisions of this section and the applicable Florida
      Rules of Criminal Procedure. . . .


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   Importantly, section 916.16, Florida Statutes (2004), allows for the
continued jurisdiction of the committing court over the defendant even
after hospitalization:

      (1) The committing court shall retain jurisdiction in the case
      of any defendant hospitalized as incompetent to proceed or
      because of a finding of not guilty by reason of insanity
      pursuant to this chapter. No such defendant may be released
      except by order of the committing court. . . .

      (2) The committing court shall retain jurisdiction in the case
      of any defendant placed on conditional release. No such
      defendant may be released from the conditions of release
      except by order of the committing court.

   The January 2006 order declaring Phillips insane at the time of his
probation violation not only resolved the pending violation, but also
committed Phillips to DCF. Specifically, the court found that Phillips met
the criteria of section 916.15(1), Florida Statutes (2004), noting that due
to his mental illness:

      (a) The Defendant is manifestly incapable of surviving alone
      or with the help of willing and responsible family or friends,
      including available alternative services, and without
      treatment, the Defendant is likely to suffer from neglect or
      refuse to care for himself and such neglect or refusal poses a
      real and present threat of substantial harm to the defendant’s
      well-being; and/or

      (b) There is a substantial likelihood that in the near future
      the Defendant will inflict serious bodily harm on himself or
      another person, as evidenced by recent behavior causing,
      attempting or threatening such harm.

   Thus, Phillips found his way into the custody of DCF. When it was
determined in March 2007 that hospitalization no longer was required,
Phillips was placed on conditional release.

   Section 916.17, Florida Statutes (2004), governs conditional release
and places a defendant under the control of the court. Subsection (1) of
916.17 and Rule 3.219(a) of the Florida Rules of Criminal Procedure direct
the court to order a conditional release plan, which shall include
provisions for residential care, supervision, outpatient mental health
services, and other such services or care that the court finds appropriate.

                                    6
The statute and the rule also direct review by the court if the defendant’s
condition deteriorates to the point that inpatient care is required. In such
a case, the court may order involuntary treatment, including re-
hospitalization. § 916.17(2), Fla. Stat. (2004); Fla. R. Crim. P. 3.219(b).

    Phillips’ case was transferred to the mental health division of the circuit
court in March 2007 where his conditional release was monitored. In
February 2010, following two separate sexually-charged stalking or
harassment of women victims, the mental health judge ordered the
appointment and reports of experts to determine whether Phillips met the
criteria for return to involuntary hospitalization. The doctors found that
Phillips met the criteria of need for care and dangerousness. Based upon
these evaluations, the mental health judge committed him to DCF custody
on April 6, 2010. It was during this DCF total confinement that SVP
proceedings were initiated.

   Phillips raises several issues, not presented in the motion to dismiss
below, which focus on the fact that the insanity finding was entered for a
violation of probation as opposed to the underlying armed burglary and
sexual battery charges. These issues are without merit, however, as it is
clear that the circuit court’s jurisdiction over Phillips existed through
chapter 916. As a result, SVP proceedings were initiated during a lawful
total confinement and Phillips meets the definition of a sexually violent
predator under section 394.912(10). We affirm the trial court’s order.

   Affirmed.

GROSS and DAMOORGIAN, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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