JEFFREY ERTLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Ertley challenged the constitutionality of sex-offender probation conditions imposed following his conviction for attempted sexual battery. The court affirmed the trial court's imposition of these conditions, finding them constitutional.
The court held that the challenged probation conditions do not violate due process. The condition at issue provides fair notice because obscenity is defined by established legal standards, Florida statutes defining attempted sexual battery provide adequate notice of deviant sexual behavior, and a revocation hearing will be available if violations are charged.
[1] Sex offender probation conditions are not unconstitutional if they are rationally related to the offense.
[2] A statute is not void for vagueness if it provides a person of ordinary intelligence fair notice of what constitutes forbidden conduct.
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Join FLexlaw to unlock all legal intelligence“The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.”
Establishes the applicable legal standard for evaluating vagueness challenges to probation conditions.
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Join FLexlaw to unlock all legal intelligenceErtley pleaded guilty to attempted sexual battery while in a position of familial or custodial authority. He was sentenced to seven years of incarcera…
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PER CURIAM.
Appellant contends that the trial court erred in imposing certain unconstitutional sex-offender conditions of probation on his sentence for attempted battery. We affirm.
Following entry of a plea, appellant was adjudicated guilty of the lesser-included offense of attempted sexual battery while in a position of familial or custodial authority and sentenced to seven years of incarceration, followed by five years of probation. Appellant reserved the right to challenge the constitutionality of several of the sex-offender probationary conditions set out in sections 948.03(5)(a) and (b), Florida Statutes (1999), that were imposed.
This court has previously rejected most of appellant’s challenges. For example, in Greenwood v. State, 754 So. 2d 158 (Fla. 1st DCA 2000), we rejected identical challenges that the conditions set forth in subsections 948.03(5)(a)(l), (a)(10), (b)(2) and (b)(3) were not rationally related to the offense and that subsections 948.03(5)(a)(10), (b)(1) and (b)(3) constituted unlawful delegations of judicial authority to probation officers. In Britt v. State, 775 So. 2d 415 (Fla. 1st DCA 2001), this court rejected appellant’s void-for-vagueness challenge to the conditions contained in subsections 948.03(5)(a)(2) and (a)(6). All the other arguments appellant raises, with the exception of his challenge to the condition set forth in section 948.03(5)(a)(7), were not raised below or were perfunctorily raised and, therefore, are not preserved for appeal. See Greenwood, 754 So. 2d at 160.
Section 948.03(5)(a)(7) provides the following prohibition:
Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.
Appellant complains that this condition violates due process, because it does not provide notice of what is “obscene” and provides no hearing or notice about what constitutes his “deviant behavior pattern.” We disagree.
“The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.” Brown v. State, 629 So. 2d 841, 842 (Fla.1994) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)). The United States Supreme Court has defined obscene material. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Sections 794.011 and 777.04, Florida Statutes (1999), which define attempted sexual battery while in a position of familial or custodial authority, provide adequate notice of appellant’s “deviant sexual behavior,” and a revocation hearing will be provided should appellant be charged with violating this provision. Thus, appellant’s arguments are without merit.
AFFIRMED.
ERVIN, BOOTH and ALLEN, JJ., concur.
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Lawson v. State, 941 So. 2d 485 (Fla. 5th DCA 2006)…inclusive, and detailed notice conceivable. .We adopt the view that fair notice can be satisfied by conditions of probation that provide reasonable individuals of common intelligence the basis to know and understand its meaning. See Ertley v. State, 785 So. 2d 592 (Fla. 1st DCA 2001); Britt v. State, 775 So. 2d 415 (Fla. 1st DCA 2001). Under this view, conditions of probation do not have to be precise to the point of obtrusiveness in order to afford fair notice to the probationer and, therefore, it is not nec…
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Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005)…counsel have rejected the claim that compulsory DNA testing violates the fourth amendment. Defense counsel did not raise the other constitutional challenges to section 943.325 and so these issues have not been preserved for review. Ertley v. State, 785 So. 2d 592 (Fla. 1st DCA 2001) (defendant’s objections to conditions of probation on constitutional grounds were not properly preserved for appellate review, where objections were not raised below or were perfunctorily raised). AFFIRMED without prejudice to M…
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Kasischke v. State, 946 So. 2d 1155 (Fla. 3d DCA 2006)…and probationary conditions do not have to be relevant to the defendant’s offense or the offender’s deviant behavior. The probationary condition against viewing pornographic material was the subject of a constitutional challenge in Ertley v. State, 785 So. 2d 592 (Fla. 1st DCA 2001). In that case, the defendant complained that such a probationary condition violated his due process rights because it did not provide notice of what is obscene or what constitutes his deviant behavior pattern. The First District…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. California, 413 U.S. 15 (U.S. 1973)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (U.S. 1972)
- Brown v. State, 629 So. 2d 841 (Fla. 1994)
- Greenwood v. State, 754 So. 2d 158 (Fla. 1st DCA 2000)
- Gates v. State, 775 So. 2d 415 (Fla. 1st DCA 2001)