5D03-3452 Daryl Lavender v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3452

Case Date: 11/29/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

DARYL L. LAVENDER, Appellant, v. STATE OF FLORIDA, Appellee. ___________________________________/ Opinion filed December 3, 2004 Appeal from the Circuit Court for St. Johns County, J. Michael Traynor, Judge. Daryl L. Lavender, Arcadia, Pro Se. Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. After being convicted of lewd and lascivious acts upon a child and completing his prison sentence, Daryl L. Lavender was civilly committed as a sexually violent predator pursuant to the Jimmy Ryce Act ("the Ryce Act"), sections 394.910-.931, Florida Statutes (2003) (entitled "Involuntary Civil Commitment of Sexually Violent Predators"). Section 394.918(1), Florida Statutes (2003),1 requires that the committed person undergo an CASE NO. 5D03-3452

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Section 394.918(1), Florida Statutes (2003), provides: (1) A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court's discretion. The person may retain or, if the person

examination of his mental condition at least once a year. The results of that examination are then provided to the circuit court that committed the person. Upon receipt of the report, the court is required to review the person's status and then hold a limited probable cause hearing described in section 394.918(3)2 to determine if the person's "condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence of discharged." Id. Lavender, who is self-represented and indigent, sought and obtained the appointment of an independent expert, Louis Legum, Ph.D., in anticipation of the circuit court's annual review of his mental status. Lavender also sought authorization for Dr. Legum to perform two specific tests: a penile plethysmograph3 and a polygraph. The trial court denied Lavender's

is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person's status.
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Section 394.918(3), Florida Statutes (2003), provides: 3) The court shall hold a limited hearing to determine whether there is probable cause to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

A penile plethysmograph is a test designed to measure sexual responsiveness to a variety of stimuli across gender, age, and sexual activity. See In re Care & Treatment of Tucker, 578 S.E.2d 719, 721 (S.C. 2003). As used in this setting, a plethysmograph is a device that measures changes in the circumference of the penis. During the test, a cuff, 2

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request for these tests and this appeal followed. The issue of the trial court's authority to authorize specific tests for an individual committed under the Ryce Act appears to be one of first impression in Florida. However, we recognize that "[c]ivil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions." State v. Goode, 830 So. 2d 817, 825-26 (Fla. 2002). Even in civil commitment proceedings, "[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80 (1992). In proceedings where the "individual interests at stake . . . are both 'particularly important' and 'more substantial than mere loss of money,' " due process places a higher burden on the state. Pullen v. State, 802 So. 2d 1113, 1117 (Fla. 2001) (quoting Santosky v. Kramer, 455 U.S. 745, 746 (1982)). Indeed, "[t]he deprivation of liberty which results from confinement under a state's involuntary commitment law has been termed a 'massive curtailment of liberty.' " Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978) (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)). Consequently, "[t]hose whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions." Id. Because of that similarity, an examination of the jurisprudence relating to the

sometimes referred to as a "strain gauge," is placed around the subject's penis and any change in circumference is noted while the subject is presented with materials depicting various sexual scenarios, both appropriate and otherwise. Doe v. Miller, 298 F. Supp. 2d 844, 859 n.8 (S.D. Iowa 2004). 3

authorization of specific tests for an indigent criminal defendant is instructive. Generally, a trial court's refusal to provide funds for the appointment of experts for an indigent criminal defendant will not be disturbed absent an abuse of discretion. Martin v. State, 455 So. 2d 370, 372 (Fla. 1984). Still, the trial court has a duty to appoint an expert witness when required by an indigent defendant, and when that expert's opinion is relevant to the issues of the case. See

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