Newsletter 2002-04

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Newsletter 2002-04 Powered By Docstoc
					                             EIGHTH JUDICIAL CIRCUIT
                       WILLIAM P. CERVONE, STATE ATTORNEY
Le g al B ulle tin 2 0 0 2 -0 2                                    April 2 0 0 2
Editor: Ros e Mary Treadway


                                           in my view simple.           The
                                           heroic   acts     of   so   many
              STATE ATTORNEY               police   officers     and   fire
                                           fighters in the disasters of
               BILL CERVONE                September   11th    earned   the
                                           respect and gratitude of the
     As   we   approach   this             nation. Those acts serve as
year’s     law     enforcement             a visible demonstration and
memorial   ceremonies   across             reminder of the dedication
the Circuit I think all of                 of     the       entire      law
us realize that those will                 enforcement community’s call
have special meaning to not                to service and have done
only   the   law   enforcement             much    to   counteract      the
community but also to the                  skepticism that the public
general public this year.                  had fallen into as a result
After all, the events of                   of the often bad publicity
September 11th will forever                law enforcement receives.
be a part of our history and                    With that in mind I
our own memories.                          salute each of you who serve
     In addition, we have                  our citizens and Circuit,
suffered a personal and more               and I extend my personal
immediate loss in the death                thanks for the job you do
of GPD Officer Scott Baird                 and the sacrifices you make
in 2001.    All of this adds               to do it.
up to the inscription of                        I also ask that you
such a large number of names               remember always that you and
on various monuments that it               everything    you    do   is   a
is, as Mayor Guiliano said,                statement       about       your
almost too much to bear.                   profession as much as it is
     There is a silver lining              a statement about you and
to all of this in that our                 your department.        Keep up
country has seen a return to               the   good   work     and   keep
some of its core values over               striving to be even better
the past few months.       Not             at it than you are now.
only is patriotism proudly
on display in ways it has
not been in my memory but                               *****
also   there   is   a  renewed
sense of appreciation for
the      law       enforcement                 SAO PERSONNEL CHANGES
community that is evident in
many ways.                                      SEAN   BREWER   will   join
     The reason for this is

                                       1
the SAO on April 1 as an ASA           retired after each serving
and will be assigned to Levy           almost    23   years,    most
County, where he will assume           recently in Court Security.
Brian Kramer’s caseload.
Sean has worked as an ASA in                 Cedar Key Police Chief
Marion County since 1998. As           BUBBA   CASTELL  retired  on
mentioned elsewhere in this            March 1 and was succeeded by
issue, Brian will be filling           DAN SWOGGER, formerly of the
a    new    grant     position         Inglis Police Department.
dedicated   to    felony   gun
prosecutions.                                      ******
     ASA    BETH    ONDRIEZEK
resigned her duties as a                     CONGRATULATIONS !
juvenile           prosecutor
effective March 8 to open                   In December Lawtey Chief
her   own  law   practice  in          of Police BUTCH JORDAN was
Jacksonville. She will be              re-elected to another four
replaced by MICHELLE SMITH,            year term. Chief Jordan has
a recent graduate of UF law            held office since 1962 and
school, who has been working           has   been   named   in   the
at   the  Public   Defender’s          Guinness Book of Records as
Office.                                the longest elected police
                                       chief in the world.
             *****
                                            In    January,       PAULA
                                       PATTERSON,       SAO     Victim
         LAW ENFORCEMENT               Advocate, was selected to
           CHANGES                     receive the William Weber
                                       Volunteer     Memorial    Award
      TOMMY   FIRTH,    of   the       that was presented at the 8th
Union      County     Sheriff’s        Annual Rape Awareness Month
Office   in    charge   of   the       Banquet    by     the   Alachua
Civil     Division,      retired       County       Department      of
after 25 years of service as           Community Support Services.
a deputy.                               This     award      is   given
                                       annually to a volunteer from
     BILL   GALLMON  of   GPD          the     Office     of    Victim
retired on January 24. Bill            Services who exemplifies the
has    been     the    latent          same quality of care and
fingerprint examiner for the           commitment modeled by Dr.
department since 1982.    His          Weber.
duties will be assumed by
Melissa Kilmer.                             Levy County ASA BRIAN
                                       KRAMER and his wife Annette
     Sergeant EDDIE MCCALL             welcomed new baby Hailey on
retired  from   the  Alachua           February 9.
County Sheriff’s Office in
February after 20 years of                  On    January    9,    GPD
service. Also Deputies DICK            officers    W.J.   CREWS    and
SCULLY   and   ANNE   ALCORN           WHITNEY        STOUT       were

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individually honored at the           news anchor.    She currently
Corner   Drug  Store  Annual          serves   in    the   Domestic
Meeting for their efforts             Violence division.
with   local  children   and
teens.                                     On   February   27,   GPD
                                      promoted   the   following:
     ASO     Sheriff      STEVE       RICHARD HANNA to captain,
OELRICH and ASO were also             JARET WEILAND to sergeant,
recognized with a Community           WILL HALVOSA to lieutenant,
Involvement       Award     for       JOSEPH      RAULERSON       to
assisting      with     Project       corporal, ROBERT KOEHLER to
MAJIC,   a    peer    mediation       Sergeant and DAN STOUT to
program   at    Eastside   High       corporal.
School and Ft. Clarke Middle
School, that was in jeopardy               ASO promoted deputy CHAD
of being eliminated due to            SCOTT to sergeant in January
lack of funding.                      and   JOHN    MOORHOUSE   was
                                      promoted to bureau chief of
     ASO Sheriff’s deputy TOM         the new Fire Alarm Reduction
PERSEO received the Larry             Bureau in February.
Edwards Service Award from
the       Alachua      County                     *****
CRIMESTOPPERS for his many
contributions       to   that
organization.   The award was
presented         at      the              VICTIM’S RIGHTS WEEK
CRIMESTOPPERS annual meeting
on January 11.                             Victim’s  Rights  Week
                                      will fall in April of this
     At   the   annual     Keep       year. In ALACHUA County the
Alachua    County     Beautiful       following     events    are
Awards banquet on January             scheduled:
26, Squirrel Ridge Park was
recognized   with    a   bronze            On Wednesday, April 24
award in the category of              at 7:30 am, the First Annual
“Outstanding             Public       Victim Rights Week Breakfast
Landscaping”.   This park was         will be held at Eastside
dedicated as the Victims’             High School.    The cost is
Memorial Park in 1996 and is          $10   and   the   public  is
believed to be the first              invited.   The emcee will be
county   park     in    Florida       Bill Cervone and the guest
dedicated to crime victims.           speaker is Wayne Griffin,
                                      Associate Director of the UF
     ASA   ROSALYN  MATTINGLY         Counseling Center.
was sworn in as a member of
the Florida Bar on January                 On Thursday, April 25 at
25. A former Alabama judge,           6   pm,    there   will  be   a
prosecutor      and    police         community planting at the
academy instructor, Rosalyn           Victims’      Memorial    Park,
moved to Gainesville to join          Squirrel Ridge Park, located
her husband Gary, TV 20’s             off of Williston Road just
                                      west    of    SW   13   Street,

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followed   by   a   6:30  pm
dedication of the playground
pavilion    and   a    7  pm               PROJECT PAYBACK
Candlelight ceremony.
                                          For    the    first    time
     The     annual    State         during    a   calendar     year,
Attorney’s    Office   Blood         $50,000 in restitution has
Drive for Victims will take          been paid back to Alachua
place at the Gainesville SAO         County victims of juvenile
on Friday, April 26 all day.         offenders by juveniles who
 Anyone can donate blood and         have either become employed
you can schedule a specific          or     worked      off     their
time   in  order    to avoid         restitution     by   performing
waiting. Call Dave Remer at          documented             community
374-3686 to do so.                   restitution             service,
                                     according    Gretchen    Howard,
     In GILCHRIST and LEVY           Program Manager for PROJECT
Counties, the memorials will         PAYBACK.
take     place     at    their
respective    courthouses   at            PROJECT     PAYBACK      was
5:30 pm.                             created in 1997 through an
                                     Edward    Byrne     grant     and
                                     became   a   program     of   the
            *****                    State    Attorney’s       Office
                                     later that year.       Over 600
                                     youths, ages 8-18, have been
LAW ENFORCEMENT MEMORIALS            ordered to participate as a
                                     condition        of         their
                                     sentences.     PROJECT PAYBACK
     The ALACHUA County LEO          provides individualized job
memorial will be held on May         skills    training     and    job
30 at 10:30 am at the Law            location     assistance       and
Enforcement Memorial located         money     earned      is     paid
off of Tower Road.                   directly    to    the    Clerk’s
                                     Office and sent to victims.

     Memorial  services  for
BAKER County will take place              PROJECT PAYBACK received
on May 2 at 6 pm at the              a one year VOCA grant that
Baker County SO.                     has allowed for expansion
                                     into the other five counties
     BRADFORD    and    UNION        of the Circuit.       Shannon
Counties will honor their            Hutson works in the Baker,
fallen comrades on May 7 at          Bradford and Union Counties
6:30   pm  at  the   Bradford        and Christy Perry and Paula
County Fair Grounds, Bldg 3.         Taylor share a full time
                                     position     in   Levy    and
                                     Gilchrist   Counties.     For
            *****                    more    information   contact
                                     Gretchen Howard at 337-6174.


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             *****
                                                  REMINDER:
                                          LEGAL BULLETIN NOW ON-LINE
 ALCOHOL TESTING PROGRAM                     As announced in our last
                                        issue, the Legal Bulletin is
                                        now     available    on-line,
The Alcohol Testing program             including      old     issues
now has a website located at            beginning with calendar year
www.fdle.state.fl.us/atp.               2000.    To access the Legal
This     website       contains         Bulletin   go   to  the   SAO
current FDLE/ATP forms, a               website                    at
calendar of statewide Breath            sawww.co.alachua.fl.us    and
Test     Courses,       alcohol         click     on    the    “Legal
reference      solution     lot         Bulletin” box.
numbers     and      expiration
dates, notification of rule                           *****
changes,   a    link   to   the
Florida Administrative Code,
and contact information for
the Alcohol Testing Program                TRAFFIC CASES OF INTEREST
staff.   Call    the    Program
office at (850) 410-8304 for                 A Lake Alfred patrol car
additional information.                 attempted to stop a car for
             *****                      a traffic offense in the
                                        January case of JACKSON V
                                        STATE (2 DCA). The car fled
           UPDATE:                      from the officer who pursued
  SAO GUN PROSECUTION GRANT             with    sirens      and    lights
                                        activated.     The Court held
     ASA BRIAN KRAMER will be           that   where    there     was   no
                                        testimony or evidence that
assigned    to    a   new   grant       the unit was “prominently
funded position dedicated to            marked with agency insignia
the       prosecution         and       and    other     jurisdictional
monitoring     of   felony    gun       markings,” there can be no
cases   on    a   circuit    wide       conviction        for      FELONY
basis beginning on April 1.             Fleeing and Attempting to
 This grant provides federal            Elude    pursuant       to    F.S.
dollars for a three year                316.1935(2).     Note that this
period.    Details of Brian’s           statute requires lights AND
responsibilities      are   still
being worked out but he will            sirens AND     agency insignia
be   both    coordinating     and       as prerequisites to a Felony
reporting     to     the    State       Fleeing conviction.             It
Attorney on all firearm and             would follow that the use of
10-20-life      cases    in   the       an unmarked car will likely
circuit as well as actually             preclude              successful
handling     many     of    those       prosecution for the felony.
prosecutions.

             *****                                    *****


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In a January case also out                    On January 22, 2002, the
of the 2DCA,        DONALDSON V         United States Supreme Court
STATE, an officer saw a car             handed down a significant
pull out of a hotel parking             decision in KANSAS V CRANE.
lot with tires squealing.                 This case was brought to
The officer stopped the car             the court by the State of
because of his belief that              Kansas    following      a   prior
the    driver      was     either       ruling by the Kansas Supreme
impaired    or     fleeing    the       Court holding that before a
scene   of   a    crime.      The       respondent could be civilly
driver was given a citation             committed      as    a    sexually
for improper start and then             violent predator, the State
consented to a search of his            must      prove       that     the
vehicle where contraband was            dangerous       individual      is
found.   The Court suppressed           “completely         unable      to
the contraband as the fruit             control his behavior”.         The
of an invalid traffic stop.             Kansas    Supreme      Court   had
 The Court found that there             interpreted the earlier U.S.
were    no other cars on the            Supreme Court case of KANSAS
road    that could have been            V    HENDRICKS     (1997)    which
endangered, that there was              upheld the constitutionality
no probable cause that the              of     civil     commitment     of
driver was in violation of              sexually violent predators.
316.154,    Improper       Start,         In CRANE, the U.S. Supreme
since the officer could not             Court held that it was not
testify that he saw the car             necessary to prove that a
either stopped, standing or             person was totally unable to
parked before he heard the              control his behavior before
squeal of the tires, and                being civilly committed as a
that    there     is    no    law       sexually violent predator.
violation      for     squealing              In the CRANE decision,
tires alone. The Court also             Michael Crane, a previously
said there was no evidence              convicted     sexual     offender,
to     show      any     founded        was found to suffer from
suspicion       of      criminal        both exhibitionism and anti-
activity,     or     even     DUI       social personality disorder.
because there was no erratic              Michael Crane was convicted
driving pattern accompanying            at the trial court level of
the squealing.                          lewd and lascivious behavior
                                        for exposing himself to a
             *****                      tanning salon attendant and,
                                        30 minutes later, entering a
                                        video store, waiting until
                                        he was the only customer
 U.S. SUPREME COURT RULES ON            present,        and       exposing
  SEXUALLY VIOLENT PREDATORS            himself to the clerk.           He
                                        then grabbed the clerk by
          Contributed by                the     neck,     demanded     she
                                        perform oral sex on him, and
    ASA Steve Pennypacker               threatened      to     rape   her,
                                        before running out of the

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store.     The State’s mental              to     control       behavior.
health experts agreed that                 Unfortunately,         the     Court
his mental disorder “does                  does not go on to define
not impair his volitional                  “difficult          to      control
control to the degree he                   behavior”. The Court states:
cannot control his dangerous                     “…    the    Constitution’s
behavior”,       but     that    his       safeguards of human liberty
behavior     was       marked     by       in    the     area     of     mental
“impulsivity or failure to                 illness and the law are not
plan    ahead”       and    “was   a       always bright-line rules.
combination of willful and                 For one thing, the States
uncontrollable behavior”.                  retain    considerable        leeway
     In reversing the Kansas               in    defining        the     mental
Supreme     Court,       the    U.S.       abnormalities                    and
Supreme        Court         avoided       personality       disorders     that
setting down a bright line                 make an individual eligible
rule for other states to                   for commitment.”
follow in applying their own                     So what does this mean
sexually     violent       predator        for the State of Florida
acts.      The language that               and, particularly, those of
will      be        quoted      most       us in the Eighth Circuit who
frequently by both the State               seek     to     civilly       commit
and the defense in applying                sexually     violent      predators
this    case      is    set    forth       under the Jimmy Ryce law?
below:                                           To answer this question,
     “It is enough to say                  we must first look at the
that there must be proof of                current statute in Florida.
serious        difficulty         in        The      Involuntary          Civil
controlling behavior.            And       Commitment         of      Sexually
this, when viewed in light                 Violent        Predators         Act
of such features of the case               (commonly       known      as    the
as    the     nature       of    the       “Jimmy Ryce Law”) was passed
psychiatric       diagnosis,     and       by the Florida legislature
the severity of the mental                 in 1999.        The law can be
abnormality itself, must be                found at Secs. 394.910 –
sufficient       to    distinguish         394.931,      Florida      Statutes
the       dangerous           sexual       (2001).
offender        whose        serious            The    process      of    civil
mental illness, abnormality,               commitment begins before the
or disorder subjects him to                release of the respondent
civil commitment from the                  from          his          criminal
dangerous          but       typical       incarceration.                   The
recidivist convicted in an                 potential        respondent       is
ordinary criminal case”.                   screened      based     upon     the
     What this means is that               nature of his past offenses,
a sexual offender must have                his mental health status,
some   abnormality        different        his                  institutional
from the ordinary criminal.                adjustment, and history of
 As the court emphasizes,                  treatment.              A     multi-
the phrase “difficulty in                  disciplinary       team    composed
controlling       behavior”     does       of psychologists from the
not mean absolute inability                Department of Children and

                                       7
Family Services (DCF) makes                than     beyond     a     reasonable
an initial determination of                doubt.        If       the       jury
whether the individual meets               determines that the person
commitment criteria.          If the       is     a     sexually        violent
records review indicates a                 predator,       the     person     is
potential      commitment,       the       committed to the custody of
individual is evaluated by                 DCF for treatment until such
two                    independent         time as the person’s mental
psychologists                     or       abnormality      or     personality
psychiatrists who then file                disorder has so changed that
a report with the multi-                   it is safe for the person to
disciplinary       team.         The       be at large.          A review of
entire      packet       is     then       the         person’s          mental
forwarded      to      the     State       condition is to be held at
Attorney      in    the      circuit       least once each year after
where the last offense was                 commitment.
committed.            The      State           For the application of
Attorney         then        decides       the      CRANE      decision       to
whether     to    file     a   civil       Florida cases, we must look
commitment       petition.      Once       at    the     definition       of   a
filed,     the      petition      is       sexually violent predator in
reviewed by a circuit judge                Florida       found       in     F.S.
ex   parte     for    a    probable        394.912(10).           A    sexually
cause determination. If the                violent      predator       is    any
court finds probable cause,                person who
an      order       is       entered       (a) has been convicted of a
requiring the respondent to                      sexually               violent
be delivered to DCF to be                        offense, and
held in a secure facility                  (b) suffers from a mental
pending final determination                      abnormality                  or
of    the    civil      commitment               personality           disorder
proceeding.       The respondent                 that makes the person
is     entitled       to      court-             likely to engage in acts
appointed counsel if found                       of sexual violence if
to      be      indigent.        The             not confined in a secure
respondent may request and                       facility for long-term
the court may on its own                         control,        care,       and
conduct         an        adversary              treatment.
probable cause hearing if a                      “Likely to engage in
trial is not held on the                   acts     of    sexual      violence”
civil     commitment       petition        means          the          person’s
within thirty days.                        propensity to commit acts of
    The       respondent          is       sexual violence is of such a
entitled to a jury trial on                degree as to pose a menace
the merits of the petition.                to the health and safety of
 Such a request must be in                 others. F.S. 394.912(4).
writing at least five days                       Applying the “difficulty
prior to the start of the                  in controlling his behavior”
trial.      Unlike a criminal              requirement       of     the    CRANE
trial, the burden of proof                 decision to the “propensity
upon the state is clear and                to commit acts of sexual
convincing      evidence      rather

                                       8
violence” means only that
the State must prove that
the mental abnormality or
personality      disorder    from
which the respondent suffers
is of such a nature that he
has    difficulty    controlling
his behavior.      Provided this
testimony is elicited from
the mental health expert and
is supported by the other
evidence in the case, the
State has met the holding in
CRANE.
      In sum, the case of
KANSAS V CRANE should not
have a great impact on the
civil commitment of sexually
violent        predators       in
Florida.       Proving that a
respondent has difficulty in
controlling his behavior is
already an implicit element
in showing that the person
is likely to engage in acts
of sexual violence.          This
statute is a useful tool in
keeping     sexually      violent
predators     from    committing
additional acts even though
their criminal sentence has
expired.
     If     you      have     any
questions     regarding     Jimmy
Ryce     cases,    please    call
Steve Pennypacker at (352)
374-3696.

            *****
     FOR COPIES OF CASES…

     For   a  copy   of  the
complete text of any of the
cases mentioned in this or
an  earlier   issue  of  the
Legal Bulletin, please call
ASA Rose Mary Treadway at
the SAO at 352-374-3672.




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