         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-0518
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THOMAS BENJAMIN BROWN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.

                       February 15, 2019


PER CURIAM.

     Thomas Benjamin Brown (“Brown”) appeals the denial of his
Florida Rule of Criminal Procedure 3.850 motion for
postconviction relief. For the reasons set forth below, we affirm.

     In 2002, following a negotiated plea, Brown was convicted of
sexual battery and sentenced to seven years in prison, to be
followed by five years on sex offender probation. In 2013, he
admitted violating his probation and was sentenced to twenty-
five years in prison, to be followed by five years on probation,
which this Court affirmed in a prior appeal. Brown now files the
instant appeal after raising three claims in a postconviction
motion.
     All claims raised by Brown relate to the fact that when he
was released from prison in 2009 to start his probation, he was
transferred to the Florida Civil Commitment Center, a secure
facility under the jurisdiction of the Department of Children and
Families. He alleges he never agreed to that “enhancement” of
his probationary sentence. In ground one, he alleges the trial
court lacked jurisdiction to revoke his probation because his
placement in the secure Civil Commitment Center was illegal. In
ground two, he argues his placement in the civil commitment
center violated his double jeopardy rights because it constitutes
an “enhancement” of his probationary term after it was imposed.
In ground three, Brown alleges counsel was ineffective for failing
to raise those issues and for allowing him to enter a plea to
violating his probation when his probation had not yet begun (as
he remained confined).

     The supreme court has held that involuntary commitment
for sexual predators is a civil commitment, not a punishment.
See State v. Harris, 881 So. 2d 1079, 1083 (Fla. 2004). As such, a
plea agreement for incarceration followed by probation is not
violated when a defendant is civilly committed after his release
from incarceration. Id. The supreme court specifically rejected
the argument raised by Brown that by civilly committing him,
the State was adding a term to probation (i.e., requiring him to
complete “residential” sex offender treatment). Id. Additionally,
because the involuntary commitment of sexual predators is a civil
proceeding, not a criminal sentence or punishment, the
appellant’s civil commitment does not violate double jeopardy as
it does not represent an improper increase in his sentence after it
has been imposed. See Westerheide v. State, 831 So. 2d 93, 99-104
(Fla. 2002). Finally, contrary to his assertions, Brown was on
probation while in the secure facility. This Court has noted, “a
period of probation shall commence immediately upon the release
of the defendant from incarceration.” Walker v. State, 604 So. 2d
913, 914 (Fla. 1st DCA 1992) (internal quotation and citation
omitted). Because the civil commitment is not a sentence or
incarceration, his probation started immediately upon the
expiration of his seven-year incarcerative sentence and his
transfer to the civil commitment facility.



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     The conclusion that probation starts as soon as a defendant
is released to a civil commitment is further supported by section
948.012(6), Florida Statutes.      In 2014, the subsection was
amended to indicate probation or supervision was to be tolled
while a defendant was civilly committed. That section is effective
for defendants whose “sentences of probation or community
control begin[s] on or after October 1, 2014.” §947-012(6), Fla.
Stat. (2014). Here, Brown began his probation in 2009. Thus,
prior to 2014, defendants were on probation as soon as they were
released to civil commitment under the jurisdiction of the
Department of Children and Families. Accordingly, the trial
court had jurisdiction to revoke his probation.

    AFFIRMED.

B.L. THOMAS, C.J., and M.K. THOMAS, J., concur; ROWE, J.,
concurs in result only.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Thomas Benjamin Brown, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




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