KEVIN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the civil commitment order, finding the appellant's arguments regarding the constitutionality of the Act and the jury instruction were without merit.
Smith appealed his continued civil commitment under the Sexual Predator Act, arguing the Act was unconstitutional as applied and that the lower court …
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PLEUS, C.J.
Smith appeals his continued civil commitment under the Sexual Predator Act, sections 394.910-.931, Florida Statutes (2003) (“the Act”). He first argues that the Act is unconstitutional as applied in this case because the State’s witnesses acknowledged that Smith would be eligible for release to a halfway house, but the legislature has not funded such a facility. As a result, Smith claims he is being denied due process of law.
We disagree. First, he failed to preserve the argument for appeal. We decline to address the constitutionality of a statute where that issue was not raised below. See, e.g., Lawrence v. State, 831 So. 2d 121, 136 (Fla.2002), which held that a defendant’s issue regarding the constitutionality of death penalty aggravators was not preserved because the defendant failed to object with specificity in the trial court below. Second, Smith’s argument is not supported by the facts. One of the State’s experts, Dr. Chris Robison, never recommended that Smith be released to a halfway house if one were available. The other State expert, Dr. Ted Shaw, testified that Smith had reached the highest level of treatment to date, but that the State was in the process of adding two higher levels of treatment that Smith had not yet completed. Third, this Court recently rejected a similar due process argument in Williams v. State, 909 So. 2d 939, 940 (Fla. 5th DCA 2005).
Smith next argues that the lower court erred in denying his requested jury instruction, which would require the jury to find that Smith was “highly likely,” instead of “likely,” to reoffend. This argument was rejected by our supreme court in Westerheide v. State, 831 So. 2d 93 (Fla.2002).
Accordingly, we affirm the commitment order. AFFIRMED.
MONACO and TORPY, JJ., concur.
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Citator
Cited By
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Ervin T. Johnson v. State, 997 So. 2d 506 (Fla. 5th DCA 2008)…PER CURIAM. AFFIRMED. See Smith v. State, 920 So. 2d 744 (Fla. 5th DCA 2006) (holding civil commitment under Sexual Predator Act required finding that sexual offender was “likely” to reoffend, and therefore, sexual offender who was subject of civil commitment proceedings under Act, was not entitled to jur…
Authorities Cited
- Westerheide v. State, 831 So. 2d 93 (Fla. 2002)
- Lawrence v. State, 831 So. 2d 121 (Fla. 2002)
- Williams v. State, 909 So. 2d 939 (Fla. 5th DCA 2005)