Imposing mandatory sex offender probation conditions on youthful offenders.

• Author: Sanders, Richard

The question addressed here is whether the mandatory sexual offender probation conditions contained in F.S. [section]948.30(1) must be imposed on defendants who are sentenced as youthful offenders. The article concludes that those conditions do not need to be imposed because [section]948.30(1) is superseded by the youthful offender statute.

Section 958.04(2) (emphasis added) provides in pertinent part:

In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court shall dispose of the criminal case as follows:

(a) The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than [six] years....

(b) The court may impose a period of incarceration as a condition of probation or community control....

(c) The court may impose a split sentence....

(d) The court may commit the youthful offender to the custody of the department for a period of not more than [six] years....

Section 948.30(1) (emphasis added) provides that, "for probationers...who are placed under supervision for [a] violation of [listed sexual offenses] the court must impose [a list of probation] conditions...." "Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation...." (1)

The question addressed here is which of the emphasized passages controls, the "in lieu of other criminal penalties" language in [section]958.04 or the "must impose" language in [section]948.30. In State v. Miller, 888 So. 2d 76 (Fla. 5th DCA 2004), the court concluded the "must impose" language controls and the probation conditions are mandatory for youthful offenders; this is the only reported decision on point. (2) This article argues that the "in lieu of" language in [section]958.04(2) controls; these sex offender conditions are not mandatory for youthful offenders. The article suggests that the reasoning of Miller is flawed. Further, even if Miller was good law when it was decided, the law has changed.

Florida district courts have long recognized that the "in lieu of" language in [section]958.04 preempts otherwise mandatory sentencing laws, including drug trafficking minimum mandatory sentences and fines; (3) the sentencing guidelines; (4) firearm minimum mandatory sentences, including the 10/20/life statute; (5) minimum mandatory prison terms for violent crimes against law enforcement officers; (6) and statutes that require an adjudication of guilt. (7) Florida courts have read the "in lieu of" language in this fashion since 1981, consistently "hold[ing] that the sentencing provisions of the Youthful Offender Act are the exclusive sanctions for defendants who meet its criteria." (8) These courts state that "chapter 958 [is] a separate statutory scheme for treatment of those young defendants to whom the act applies, regardless of the nature of their crimes." (9) This in turn means that the "sentencing provisions of the act are the exclusive sanctions that may be imposed in a youthful offender sentence.. Once a court classifies a defendant as a youthful offender, it is prohibited from imposing sanctions other than those of the Youthful Offender Act." (10)

Thus, if the legislative history of an otherwise mandatory sentencing law does not reveal "any specific legislative intent that would allow the [otherwise mandatory] sentence to supersede a youthful offender sentence"--i.e., if "the [otherwise-mandatory] statute contains no language to supersede the youthful offender sentence"--then the otherwise mandatory sentencing "is not applicable when one is sentenced as a youthful offender." (11) Further, if "the two sentencing statutes are susceptible of differing constructions, [a] court must construe the statutes favorably to the accused.... Had the legislature desired to require [an otherwise mandatory sentencing provision be imposed on] youthful offenders," it would and could expressly say so. (12) As to what proves a specific legislative intent to require a mandatory sentence to be imposed on youthful offenders, Miller is the only case that holds a mandatory sentencing provision overrides the "in lieu of" language in the youthful offender statute. The other cases establish what statutory language does not override the youthful offender statute. The trafficking statute states defendants convicted of trafficking "shall be sentenced" to the relevant mandatory prison term and fine. (13) Section 775.087(2) states qualifying defendants "shall be sentenced" to the applicable firearm mandatory prison term. The sentencing guidelines statute states the guidelines "shall be applied to all felonies, except capitol felonies...." (14) Section 784.07 states, "Notwithstanding any other provision of law, any person convicted of aggravated assault [or aggravated battery] of a law enforcement officers shall be sentenced to a minimum term of" imprisonment. (15) And [section]784.08(3) provides that, "[notwithstanding the provisions of s.948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld" for persons convicted of certain offenses against the elderly. But even though these statutes all use mandatory language, none of these provisions has been found to be sufficient to override the "in lieu of" language in [section]958.04.

Section 948.30(1) says the listed probation conditions "must [be] impose[d]" on defendants convicted of certain offenses. But if none of the statutory provisions just noted can be said to override the "in lieu of" language in the Youthful Offender Act, then surely the language in [section]948.30 is equally inadequate to indicate such a legislative intent. This conclusion is reinforced by the fact that [section]948.30 was first enacted in 1995, long after Florida courts had made quite clear the relationship between [section]958.04 and otherwise mandatory provisions in other sentencing statutes. (16) By 1995, the legislature surely knew that if it wished to impose a...