       Third District Court of Appeal
                               State of Florida

                           Opinion filed March 9, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2517
                          Lower Tribunal No. 14-9109
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                                Milot Richard,
                                    Appellee.



    An Appeal from the County Court for Miami-Dade County, Edward
Newman, Judge.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.


Before SHEPHERD, EMAS and LOGUE, JJ.

     EMAS, J.
      INTRODUCTION

      The State of Florida appeals from a county court order that refused to assess

a civil penalty, mandated by the express terms of section 796.07(6), Florida

Statutes (2014), upon a determination that that statutory provision was

unconstitutional.   The State contends the trial court’s refusal to impose the

mandatory penalty renders the sentence illegal, and further contends that the statute

is constitutional. Appellee contends the State does not have the statutory authority

to appeal the trial court’s order and that we should dismiss this appeal. For the

reasons explained below, we hold that the State has the authority, under section

924.07(5), Florida Statutes (2014), to appeal the sentence as illegal. We further

hold that the trial court erred in raising and adjudicating the constitutional issue sua

sponte, and vacate the order declaring section 796.07(6) unconstitutional.

      FACTS

      The relevant facts below are straightforward and not in dispute:

      Milot Richard (“Richard”) was arrested and charged with one count of

soliciting prostitution in violation of section 796.07(2)(f), Florida Statutes (2014),

after he offered to pay an undercover police officer for oral sex. Richard, who was

represented by a public defender, negotiated a plea with the State, which was

approved by the court. Pursuant to the terms of the plea agreement, Richard would

plead no contest to the charge of soliciting prostitution, and in exchange, the court



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would withhold adjudication, and place Richard on six months’ probation, during

which he would complete 75 hours of community service.              As part of the

negotiated plea, Richard agreed to pay the $5000 mandatory civil penalty required

by section 796.07(6). Prior to formal entry of the plea, defense counsel asked if

the trial court would place Richard on a payment plan for the $5000 civil penalty,

and the court agreed to do so.

      The court then pronounced the sentence of six months’ probation, including

the condition of community service hours and payment of court costs. But as to

the previously agreed upon $5000 mandatory civil penalty, the following exchange

took place:

              Judge Newman:      Wait a second. Within my purview is
                                 to consider statutes that are
                                 unconstitutional on grounds that they
                                 are irrational. Am I hearing that?1

              Defense:           Yes, your Honor.

              Judge Newman:      I am finding the statute is
                                 unconstitutional.      State you can
                                 appeal on it if you like.

              State:             That’s over the State’s [objection]
                                 Your Honor. We will be asking for a
                                 [written] order.

              Judge Newman:      Okay.

1The trial court was not actually “hearing that,” as this issue was never raised by
any party, but instead was raised for the first time by the court as described in the
above-quoted excerpt.

                                         3
            Defense:            And Your Honor for the record I think
                                that Your Honor will agree that there
                                is just no reasonable way that in Mr.
                                Richards circumstances he can ever
                                pay a $5000 fine.

      The court then refused to impose the $5000 civil penalty, despite the State’s

argument that the penalty is civil in nature, is mandatory, and was created by the

Legislature for the purpose of discouraging prostitution activities and funding drug

programs and foster care services. The final judgment imposing sentence indicates

that the trial court “waived” the $5000 mandatory civil penalty. The trial court

entered a separate written order which provided:

            Defendant raises a constitutional issue regarding the
            statutory fine for solicitation of a prostitute under F.S.
            796.07(2)(f). The fine is $5000. The evidence shows
            def. earns approximately $10,000 per year and has a wife
            and child to support and rent payments. He is the sole
            bread winner. The concern is that there is no reasonable
            way for the def. to pay this fine and the statute makes no
            provision for judicial adjustment under the
            circumstances. According [sic], the court finds the ref.
            statute irrational and in that part unconstitutional.

      The State initially appealed to the circuit court appellate division. However,

because the county court order declared a state statute unconstitutional, the State

filed a motion to transfer the appeal to the Third District Court of Appeal. See §

26.012, Fla. Stat. (2014) (providing that circuit courts shall have jurisdiction of

appeals from county courts except appeals of county court orders or judgments


                                         4
declaring invalid a state statute); Fla. R. App. P. 9.030(b)(1)(A) (providing that

district courts shall have jurisdiction to review, by appeal, final orders of trial

courts not directly reviewable by a circuit court, including county court final orders

declaring invalid a state statue). The circuit court appellate division granted the

motion and transferred the appeal to this court.

      Richard contends that the State does not have authority to appeal the order.

      ANALYSIS

      We recognize that the trial court’s refusal to impose the civil penalty (and

the determination that the statute was unconstitutional) came by way of a final

order. The State’s authority to appeal a final order in a criminal case is prescribed

by statute. State v. Pettis, 520 So. 2d 250 (Fla. 1988).        In the absence of a

statutory provision authorizing appeal, the State is without authority to seek direct

appeal of this final order.2 “The State’s right to appeal in a criminal case must be

‘expressly conferred by statute.’” Exposito v. State, 891 So. 2d 525, 527 (Fla.

2004) (quoting Ramos v. State, 505 So. 2d 418, 421 (Fla. 1987)). The State

contends that its authority to appeal the final order below is found in section

924.07(1)(e), Florida Statutes (2014), which provides:


2 By contrast, and under limited circumstances, the State may seek certiorari
review of a nonfinal order where the State’s ability to present its case is
significantly impaired. See State v. Pettis, 520 So. 2d 250, 252-53 (1988).
However, the State may not seek certiorari review of a final order where there is no
existing statutory right to appeal. LaFave v. State, 149 So. 3d 662 (Fla. 2014).

                                          5
             (1) The state may appeal from:
             (a) An order dismissing an indictment or information or
             any count thereof or dismissing an affidavit charging the
             commission of a criminal offense, the violation of
             probation, the violation of community control, or the
             violation of any supervised correctional release.
             (b) An order granting a new trial.
             (c) An order arresting judgment.
             (d) A ruling on a question of law when the defendant is
             convicted and appeals from the judgment. Once the
             state's cross-appeal is instituted, the appellate court shall
             review and rule upon the question raised by the state
             regardless of the disposition of the defendant's appeal.
             (e) The sentence, on the ground that it is illegal.
             (f) A judgment discharging a prisoner on habeas corpus.
             (g) An order adjudicating a defendant insane under the
             Florida Rules of Criminal Procedure.
             (h) All other pretrial orders, except that it may not take
             more than one appeal under this subsection in any case.
             (i) A sentence imposed below the lowest permissible
             sentence established by the Criminal Punishment Code
             under chapter 921.
             (j) A ruling granting a motion for judgment of acquittal
             after a jury verdict.
                     (k) An order denying restitution under s. 775.089.
             (l) An order or ruling suppressing evidence or evidence
             in limine at trial.
             (m) An order withholding adjudication of guilt in
             violation of s. 775.08435.

             (Emphasis added).

      The initial question then, is whether a mandatory civil penalty, contained

within the same section of a criminal statute, is considered a part of the “sentence”

within the meaning of section 924.07(1)(e), such that the State can appeal, as an

illegal sentence, the trial court’s failure to impose this mandatory penalty.



                                           6
      1. Is the mandatory $5000 civil penalty contained in section 796.07(6) a
      part of the “sentence”?

      Richard argues that the mandatory $5000 penalty cannot be considered a

part of the “sentence” (and therefore cannot be appealed by the State as an illegal

sentence) because it is expressly declared by the legislature to be a “civil penalty.”

Richard further contends that the $5000 penalty is not part of the criminal

punishment for violating the prostitution statute; rather, the money is to be utilized

for remedial purposes as set forth in that subsection:

             A person who violates paragraph (2)(f) [soliciting
             prostitution] shall be assessed a civil penalty of $5,000 if
             the violation results in any judicial disposition other than
             acquittal or dismissal. Of the proceeds from each penalty
             assessed under this subsection, the first $500 shall be
             paid to the circuit court administrator for the sole purpose
             of paying the administrative costs of treatment-based
             drug court programs provided under s. 397.334. The
             remainder of the penalty assessed shall be deposited in
             the Operations and Maintenance Trust Fund of the
             Department of Children and Families for the sole purpose
             of funding safe houses and safe foster homes as provided
             in s. 409.1678.

§ 796.07(6), Fla. Stat (2014).

      Although we agree that the required payment of $5000 is indeed a civil

penalty, and its stated purpose is remedial, it may still be considered a part of the

criminal sentence. Richard misapprehends the issue presented: the question is not

whether the $5000 penalty is “punishment,” or even whether the $5000 penalty

should be considered “civil” or “criminal.”        The rather different question is


                                          7
whether this $5000 mandatory penalty—regardless of its characterization as

criminal or civil, punitive or remedial—may properly be considered a part of the

“sentence” imposed in this criminal case, such that the State is entitled to appeal it

as an illegal sentence. Given that the mandatory penalty of subsection 796.07(6) is

contained within section 796.07—which prohibits prostitution and related crimes,

and provides both civil and criminal punishment ranging from mandatory

imprisonment3 and fines to vehicle impoundment4, civil penalties, community

service hours, and attendance at educational programs5—we conclude that the

$5000 civil penalty is part and parcel of the criminal “sentence.” Stated another

3 See § 796.07(5)(c) (providing that a person convicted of a second or subsequent
violation of paragraph (2)(f) shall be sentenced to a minimum mandatory period of
incarceration of 10 days). See generally §§ 796.07(4)-(5) (providing that
violations of the section are punishable as crimes ranging from second- and third-
degree felonies to first- and second-degree misdemeanors).

4 See § 796.07(5)(d)1. (providing that, if a person uses a vehicle in the course of
soliciting prostitution, the court may order the impoundment or immobilization of
the vehicle for a period of up to 60 days).
5   Section 796.07(5)(b) provides:
               In addition to any other penalty imposed, the court shall
               order a person convicted of a violation of paragraph
               (2)(f) [soliciting prostitution] to:
               1. Perform 100 hours of community service; and
               2. Pay for and attend an educational program about the
               negative effects of prostitution and human trafficking,
               such as a sexual violence prevention education program,
               if such program exists in the judicial circuit in which the
               offender is sentenced.


                                            8
way, we consider the $5000 mandatory penalty in this case to be part of “the

dispositive order upon conviction.” State v. McGraw, 474 So. 2d 289 (Fla. 3d

DCA 1985).

      In McGraw, the defendant was found guilty, following a trial, of felony

witness tampering. The court withheld adjudication and placed defendant on three

years of non-reporting probation. The State appealed this as an illegal sentence,

contending section 948.01(3), Florida Statutes (1983), mandates reporting

probation upon conviction of a felony.6 McGraw argued that, because probation is

not a “sentence,” the State did not have the right to appeal under section 924.07.

We held to the contrary:


6 “Conviction” in this context includes a withhold of adjudication following a
finding of guilt. At that time, section 948.01(3) provided in pertinent part:

             If it appears to the court. . . that the defendant is not
             likely again to engage in a criminal course of conduct
             and that the ends of justice and the welfare of society do
             not require that that defendant presently suffer the
             penalty imposed by law, the court, in its discretion, may
             either adjudge the defendant to be guilty or stay and
             withhold the adjudication of guilt; and in either case, it
             shall stay and withhold the imposition of sentence upon
             such defendant and shall place him upon probation under
             the supervision and control of the department for the
             duration of such probation. The department shall
             thereupon and thereafter, during the continuance of such
             probation, have the supervision and control of the
             defendant.

(Emphasis added).

                                         9
             McGraw contends that the order of probation is not an
             illegal sentence appealable under section 924.07(5),
             Florida Statutes (1983) on the theory that probation is not
             a sentence. We disagree. A word's definition may vary
             depending upon the context. While it may be necessary
             for some purposes to distinguish between a punitive
             (sentencing) and rehabilitative (probationary) disposition,
             see Villery v. Florida Parole and Probation Commission,
             396 So. 2d 1107 (Fla.1981), such a distinction is
             immaterial to the question of whether the state has the
             right to appeal a given order. We hold that for purposes
             of section 924.07(5) and Florida Rule of Appellate
             Procedure 9.140(c)(1)(I), sentence means a dispositive
             order upon conviction, which includes probation.

McGraw, 474 So. 2d at 291 (other internal citations omitted).

      As we did in McGraw, we hold that the civil penalty, which is expressly

included within section 796.07 as part of the mandatory sanctions a trial court must

impose upon a defendant who solicits another to commit prostitution, is a part of

the defendant’s “sentence” for purposes of section 924.07(5), and the State

therefore has the authority to appeal, as an illegal sentence, the trial court’s failure

to impose this mandatory penalty.

      2.   Did the trial          court    err   in   declaring    section   796.07(6)
      unconstitutional?

      Having determined that the State has the right to appeal the trial court’s

order, which failed to include the mandatory $5000 civil penalty, we next address

whether the trial court erred in declaring the statute unconstitutional.




                                          10
      Richard has candidly and properly conceded that the trial court erred in the

manner in which it proceeded. We agree. The statute’s constitutionality was never

raised by either party. Indeed, the State and Richard had negotiated a plea which

included imposition of the $5000 mandatory civil penalty, and at no time did

Richard object to, or voice any constitutional concern regarding, this civil penalty.

Only after the court approved the negotiated plea (which included the mandatory

penalty) and was in the process of orally imposing the sentence, did the court, sua

sponte, interject the constitutional issue into the case. The court erred in so doing.

“It is not a part of the judicial responsibility to undertake to invalidate [a statute]

unless the parties to the cause raise the question and assault the statute because of

organic weaknesses.” Mott v. Cochran, 117 So. 2d 408, 409 (Fla. 1960). “It is a

well established principle that the courts will not declare an act of the legislature

unconstitutional unless its constitutionality is challenged directly by one who

demonstrates that he is, or assuredly will be, affected adversely by it. . . . Courts

should not voluntarily pass upon constitutional questions which are not raised by

the pleadings.” Henderson v. Antonacci, 62 So. 2d 5, 7 (Fla. 1952) (internal

citations omitted).

      The parties had already successfully negotiated a plea to resolve the case,

and the trial court had already approved the negotiated plea, the terms of which

included imposition of the mandatory civil penalty. Thus, the parties and the court



                                          11
had, for all intents and purposes, disposed of the case. “It is a fundamental

principle that the Courts will not pass upon the validity of a statute where the case

before them may be disposed of upon any other ground.” Williston Highlands

Dev. Corp. v. Hogue, 277 So. 2d 260, 261 (Fla. 1973) (citing Mounier v. State, 178

So. 2d 714 (Fla. 1965)). Under these circumstances, it was “not only unnecessary,

but improper for a court to pass upon the constitutionality of an act, the

constitutionality of which is not challenged. . . .” State v. Turner, 224 So. 2d 290,

291 (Fla. 1969).

      Given that the assertion of unconstitutionality (and the merits thereof) was

never raised or argued by the parties below7, we conclude it unnecessary to

determine the merits of such a claim in this appeal.8 The appropriate remedy,

given the procedural context in which the issue has reached us, is simply to vacate,

as erroneously rendered, the trial court’s order declaring the statute

unconstitutional.9

      CONCLUSION


7 Even on appeal, Richard does not contend that the statute was unconstitutional;
the solitary argument raised in his answer brief addressed the State’s authority to
appeal the trial court’s failure to impose the mandatory civil penalty.
8 In fact, it is not altogether clear upon what legal basis the trial court relied in

concluding that the statute was constitutionally infirm, underscoring our reluctance
to address the merits of the constitutional question.
9 We note in passing that our sister court upheld the constitutionality of this statute

provision, as against an Eighth Amendment challenge, in its recent decision in
State v. Jones, 180 So. 3d 1085 (Fla. 4th DCA 2015).

                                          12
      We hold that the State has the statutory authority to appeal, as an illegal

sentence, the trial court’s failure to impose the mandatory civil penalty provided in

section 796.07(6).   We further hold that the trial court erred in raising and

adjudicating the constitutional issue sua sponte, reverse the judgment and sentence

and vacate the order declaring the statute unconstitutional. We remand this cause to

the county court for rendition of an amended final judgment and sentence that

imposes the civil penalty mandated by section 796.07(6).

      Reversed and remanded with instructions.




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