Is There a Provision to Determine the 'Dangerousness' of a Defendant to the Society ?
In Milks v. State, 848 So. 2d 1167 (Fla. 2d DCA 2003), the Second District declared the Act constitutional. the court rejected Milks' separation-of-powers challenge, citing Kelly v. State, 795 So. 2d 135 (Fla. 5th DCA 2001) (rejecting separation-of-powers challenge to the Act), and State v. Cotton, 769 So. 2d 345 (Fla. 2000) (rejecting separation-of-powers challenge to the Prison Releasee Reoffender Punishment Act). See Milks, 848 So. 2d at 1169.
The Second District also rejected Milks' procedural-due-process challenge. Citing Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 155 L. Ed. 2d 98, 123 S. Ct. 1160 (2003), the Court held that "due process did not entitle the defendant to a hearing to establish whether he or she was dangerous, as that fact was not material under the statute." Milks, 848 So. 2d at 1169.
In Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003), the Third District declared the Act unconstitutional on procedural-due-process grounds.
"In the absence of a provision allowing for a hearing to determine whether the defendant presents a danger to the public sufficient to require registration and public notification," id. at 1290, the Third District held that the Act "fails to provide minimal procedural due process." Id. at 1282.
Relying on the statement of legislative findings contained in the Act, which state, among other things, that sexual predators "present an extreme threat to the public safety," 775.21(3)(a), Fla. Stat. (2003), justifying the Act's registration and notification requirements, 775.21(3)(b), Fla. Stat. (2003), the Third District concluded that "the determination of 'dangerousness' is of import to the Act," and, consequently, the Act's "total failure to provide for a judicial hearing on the risk of the defendant's committing future offenses makes it violative of procedural due process." Espindola, 855 So. 2d at 1290.
Because it concluded that "dangerousness" was a material element under the Act, the Third District held that Doe was not controlling. Id.