SC01-28 State of Florida v. Darren Jerome Goode

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State: Florida

Court: Supreme Court

Docket No: sc01-28

Case Date: 10/17/2002

Plaintiff: SC01-28 State of Florida

Defendant: Darren Jerome Goode

Preview:Supreme Court of Florida
No. SC01-28
STATE OF FLORIDA,
Appellant,
vs.
DARREN JEROME GOODE,
Appellee.
[October 17, 2002]
PER CURIAM.
We have for review a trial court judgment certified by the district court of
appeal to be of great public importance and to require immediate resolution by this
Court.   See State v. Goode, 779 So. 2d 544 (Fla. 2d DCA 2001).   We have
jurisdiction.   See art. V, § 3(b)(5), Fla. Const.   For the reasons stated below, we
affirm the trial court’s order dismissing the involuntary civil commitment
proceedings against the appellee, Darren Jerome Goode, initiated upon the
expiration of his sentence of imprisonment, because a trial was not commenced

within the mandatory thirty-day time period provided by statute, and no
continuance for good cause was ordered prior to the expiration of that period.   We
further hold, however, that the expiration of the mandatory thirty-day period does
not deprive the trial court of jurisdiction over the commitment proceedings.
BACKGROUND
Darren Goode was convicted of attempted sexual battery and sentenced to a
forty-two month prison sentence.   He was scheduled to be released on October 28,
1999.   On the day he was scheduled to be released, the State filed a petition to
civilly commit Goode as a sexually violent predator pursuant to what is commonly
known as the Jimmy Ryce Act (the Ryce Act),1 sections 394.910-.931, Florida
Statutes (1999) (entitled “Involuntary Civil Commitment of Sexually Violent
Predators”).   On that same day, the trial court made an ex parte finding pursuant to
section 394.915(1), and without any notice to Goode, that probable cause existed
to continue to detain Goode.   Goode was thereafter detained indefinitely despite the
expiration of his criminal sentence.
While Goode remained imprisoned he was not notified of the civil
1.   The Ryce Act received its name from the name of a child victim in a
capital murder and sexual abuse case.   We have upheld the constitutionality of the
act as to various challenges in Westerheide v. State, No. SC00-2124 (Fla. Oct. 17,
2002).
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commitment proceedings until November 22, 1999, when a status hearing was held
in front of a different judge of the Thirteenth Judicial Circuit, Judge Ralph
Steinberg.   At the time of the hearing, only six days remained before expiration of
the thirty-day time limit provided for in section 394.916(1) to conduct a final
hearing in the commitment proceedings.   Goode’s newly appointed counsel moved
to dismiss the proceedings because of the difficulty involved with preparing for and
proceeding to trial in six days.   Judge Steinberg denied the motion without
prejudice because another judge had been assigned to Goode’s case and Judge
Steinberg preferred that the motion be ruled on by the judge assigned to the case.
On January 6, 2000, while Goode was still being detained without trial,
defense counsel filed two additional motions to dismiss the proceedings, and on
January 24, 2000, a hearing on Goode’s motions to dismiss was held before Judge
J. Rogers Padgett, the assigned judge.   At the conclusion of the hearing, Judge
Padgett dismissed the proceedings on a violation of the statutory provision
requiring a final hearing to commence within thirty days of the ex parte finding of
probable cause.   A written order was entered on the same day, providing:
That the Respondent’s Motion to Dismiss be, and hereby is,
GRANTED; The Court finds that pursuant to Sections 394.916(1),
Florida Statutes (1999), the Petitioner failed to bring the Respondent
to trial within the required 30 days; the 30 day time limit for trial was
not requested to be continued for good cause by either party or by the
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court on its own motion pursuant to 394.916(2), Florida Statutes,
(1999); since the time limit for commencing trial in this case has
expired, it is hereby ordered that the petition is dismissed.
The State appealed and the Second District Court of Appeal certified the case to
this Court without ruling on the merits.   See Goode, 779 So. 2d at 545.   However,
in another decision involving the same issue the Second District held that the thirty-
day provision for bringing a detainee to trial was mandatory, a holding consistent
with the trial judge's ruling herein.   See Kinder v. State, 779 So. 2d 512 (Fla. 2d
DCA 2000).   We have approved the Kinder holding in a separate opinion.   See
State v. Kinder, No. SC01-37 (Fla. Oct. 17, 2002).
ANALYSIS
The Ryce Act sets out a scheme for the continued detention of persons who
have been convicted and imprisoned in Florida for certain sexual offenses.
Sections 394.918-.930 of the Ryce Act provide for the civil commitment of
“sexually violent predators” after their criminal sentences have expired.   See §§
394.910-.931, Fla. Stat. (1999).   A “sexually violent predator” is defined in the
Ryce Act as “any person who: (a) Has been convicted of a sexually violent
offense; and (b) Suffers from a mental abnormality or personality disorder that
makes the person likely to engage in acts of sexual violence if not confined in a
secure facility for long-term control, care, and treatment.”                             § 394.912(10), Fla. Stat.
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(1999).
Section 394.913 requires a multidisciplinary team made up of psychiatrists or
psychologists to assess inmates in Florida prisons who are serving sentences for
sexually violent crimes.                                                                     § 394.913, Fla. Stat. (1999).   If the multidisciplinary team
concludes that the person meets the definition of a “sexually violent predator,” the
team must provide a written assessment and recommendation to the state attorney.
See id.   After receiving the team’s assessment and recommendation, the state
attorney is authorized to file a petition with the circuit court “alleging that the person
is a sexually violent predator and stating facts sufficient to support such allegation.”
§ 394.914, Fla. Stat. (1999).
Section 394.915(1) authorizes the court to make an ex parte determination,
based on the state attorney’s petition, as to
whether probable cause exists to believe that the person named in the
petition is a sexually violent predator.   If the judge determines that
there is probable cause to believe that the person is a sexually violent
predator, the judge shall order that the person remain in custody and
be immediately transferred to an appropriate secure facility if the
person’s incarcerative sentence expires.
In cases where a person’s incarcerative sentence expires, entitling the person to
release, section 394.915(2) provides for the possibility of a second “adversarial”
determination of probable cause:
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Upon the expiration of the incarcerative sentence and before the
release from custody of a person whom the multidisciplinary team
recommends for civil commitment, but after the state attorney files a
petition under s. 394.914, the court may conduct an adversarial
probable cause hearing if it determines such hearing is necessary.   The
court shall only consider whether to have an adversarial probable
cause hearing in cases where the failure to begin a trial is not the result
of any delay caused by the respondent.
(Emphasis supplied).   No adversarial probable cause determination was conducted
in Goode's case.
TIME LIMITATION FOR FINAL HEARING
The specific provision of the Ryce Act at issue in this case involves the time
for trial after a court has made a determination of probable cause under section
394.915.   Section 394.916 states, in pertinent part:
(1) Within 30 days after the determination of probable cause, the court
shall conduct a trial to determine whether the person is a sexually violent
predator.
(2) The trial may be continued upon the request of either party and a
showing of good cause, or by the court on its own motion in the interests of
justice, when the person will not be substantially prejudiced.
§ 394.916, Fla. Stat. (1999) (emphasis added).   The question before this Court
actually involves three distinct issues; whether the emphasized language should be
considered jurisdictional, meaning that after the thirty days have elapsed the court
loses jurisdiction over the case; whether the language is mandatory, meaning that
the trial must be held within thirty days; or, whether the language is simply
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directory, meaning that compliance with the time limit is discretionary and merely a
matter of convenience.   Upon review, we conclude that by its plain terms, the
thirty-day provision is mandatory but not jurisdictional.
Kansas Act
We begin our analysis with a brief discussion of the legislative history of the
Ryce Act, which appears to have been largely based on Kansas’s similar statutory
scheme allowing for the continued civil commitment of certain sexual offenders
even after they have served criminal sentences for their crimes.2                      The Florida
2.   The Kansas Legislature adopted its civil commitment of sexual predators
act in 1994.   Kelly A. McCaffrey, The Civil Commitment of Sexually Violent
Predators in Kansas: A Modern Law For Modern Times, 42 U. Kan. L. Rev. 887,
888 (1994); Kan. Stat. Ann. §§ 59-29a01-59-29a15 (1994 & Supp. 2001). In turn,
Kansas’s act was apparently modeled after the Washington Community Protection
Act, sections 71.09.010-.902, Washington Revised Code (1998), because the
Washington Supreme Court had upheld the constitutionality of its act in In re
Young, 857 P .2d 989, 1018 (Wash. 1993).   McCaffrey, supra, at 889.   The relevant
portion of the Kansas act, which is nearly identical to Florida’s Ryce Act except
for the specific amount of time allowed for trial, reads:
Within 60 days after the completion of any hearing held pursuant to
K.S.A. 59-29a05 and amendments thereto, the court shall conduct a
trial to determine whether the person is a sexually violent predator. The
trial may be continued upon the request of either party and a showing
of good cause, or by the court on its own motion in the due
administration of justice, and when the respondent will not be
substantially prejudiced.
Kan. Stat. Ann. § 59-29a06 (Supp. 2001).
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Legislature first passed the Ryce Act in 1998.3   The final staff analysis on the house
version of the Jimmy Ryce bill referred to the “strict procedural safeguards”
provided in the Kansas act and made numerous comparisons to provisions in the
Kansas act.   See Fla. H.R. Comm. on Fam. Law & Child., CS for HB 3327 (1998)
Staff Analysis 9 (final May 26, 1998).   Kansas’s act was used as a model in part
because the United States Supreme Court had upheld Kansas’s act in Kansas v.
Hendricks, 521 U.S. 346 (1997).4   In Westerheide v. State, 767 So. 2d 637, 645
(Fla. 5th DCA 2000), approved, No. SC00-2124 (Fla. Oct. 17, 2002), for example,
the Fifth District concluded that “the Florida Legislature intended to establish a civil
3.   When the Ryce Act was first passed, it was placed in chapter 916,
Florida Statutes, which pertains to mentally ill defendants in criminal cases.   See §§
916.31-.49, Fla. Stat. (Supp. 1998).   Because the U.S. Supreme Court had made a
major distinction between “civil” commitments and criminal proceedings in Kansas
v. Hendricks, 521 U.S. 346 (1997), there was initial concern about the placement of
the Ryce Act in a criminal statute.   In 1999, based on comments from state
attorneys and other persons involved with the act, the Legislature moved the Ryce
Act to chapter 394 pertaining to civil mental health commitments.   A Senate staff
analysis for the 1999 changes noted that “double jeopardy and ex post facto
challenges would have a better chance of being thwarted if this civil procedure was
not intermixed with other laws in a statutory chapter that pertains to criminal
defendants.”   See Fla. S. Comm. on Child. & Fams., CS for SB 2192 (1999), Staff
Analysis 15 (Mar. 30, 1999).   The thirty-day time limit for trial initially appeared in
section 916.36, Florida Statutes (Supp. 1998), and was moved to section 394.916,
Florida Statutes (1999).
4.   The Supreme Court has recently examined the Kansas act again in Kansas
v. Crane, 534 U.S. 407 (2002).
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proceeding substantially similar to the Kansas Act scrutinized by the court in
Hendricks.”
The State contends that the Ryce Act was based on statutes from a number
of different states and not just Kansas.   However, our review of the available
legislative history confirms that the Florida Legislature was intending to substantially
pattern the Ryce Act after the Kansas act. 5   Both the Florida House of
Representatives and the Senate developed several versions of bills that influenced
the final version of the Ryce Act.   Initially, the trial time-limit provision in the
Florida House’s version of the bill was similar to the Kansas act, except for the
actual time period for trial, which was forty-five days.   See Fla. HB 3327 § 7 (1997)
(first engrossed version of bill).   The Senate’s initial version of the bill was also
similar, but it used the Kansas act’s sixty-day time limit.   See Fla. SB 646 (1997)
(initial bill introduced to committees).   Although there is nothing in the legislative
history indicating that the precise number of days allowed for trial was based on
Kansas’s act, it is clear that the Kansas act was the model for the language of the
provision where the time limit for trial appears.
For example, the Bill Research and Economic Impact Statement for House
5.   See also, e.g., Candace J. Samolinski, Kansas Law Used for Jimmy Ryce
Act, Tampa Trib. (Mar. 26, 1998) at 18.
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Bill 3327 dated February 27, 1998, states that section 916.35 would require the
court to conduct a trial within forty-five days after filing the petition and notes that
the provision for trial is “[i]dentical to Kansas, except for the timeframe.”   On April
23, 1998, on the Senate floor Senators Klein and Gutman offered a number of
amendments to the Senate bill, one of which changed the time limit for trial to thirty
days.   See Fla. S. Jour. 841 (Reg. Sess. 1998).   In explaining the amendment,
Senator Klein stated:
This amendment provides that the trial shall be shortly after the
adversarial or non-adversarial probable cause hearing.   Again our goal
here is to make sure we compress the time and make sure that the
court responds promptly so that all this can take place within six
months prior to the point in time in which the person is scheduled to
be released from the Department of Corrections.
Fla. S. tape recording of proceedings (April 23, 1998) (floor debate) (emphasis
supplied).   From Senator Klein’s explanation, it appears that the thirty-day time
limit was adopted in order to promptly resolve the detention issue and so that the
entire commitment proceeding would be concluded before the alleged predator was
scheduled to be released.   This was no doubt influenced by the desire to avoid
situations like the instant case where a defendant’s incarcerative sentence has
expired and he would ordinarily be entitled to immediate release.
We conclude that because both the Kansas and Florida Legislatures were
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concerned about the patent constitutional issues implicit in any scheme of
involuntary and indefinite detention to be imposed in addition to specific criminal
penalties imposed for the same underlying conduct, it is apparent that they sought
to counter those concerns and temper the drastic effects of the indefinite detention
scheme by the imposition of rigid time constraints set out in explicit language in the
acts.   Importantly, the Kansas courts have found the sixty-day time provision of the
Kansas act to be both mandatory and jurisdictional.   See In re Brown, 978 P . 2d
300, 303 (1999).
Mandatory v. Directory
The Legislature’s interest in imposing rigid time constraints is expressly
reflected in the language of section 394.916(1), which specifically states that the
court “shall” conduct a trial within thirty days after the determination of probable
cause.   See § 394.916(1), Fla. Stat (1999).   We have previously stated that
“[a]lthough there is no fixed construction of the word ‘shall,’ it is normally meant
to be mandatory in nature.”   See S.R. v. State, 346 So. 2d 1018, 1019 (Fla. 1977).
However, we have also noted that its interpretation “depends upon the
context in which it is found and upon the intent of the legislature as expressed in the
statute.”   Id.   For example, courts have held that the term “shall” should be
construed as mandatory where it refers to some action preceding the possible
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deprivation of a substantive right.   See id.; Neal v. Bryant, 149 So. 2d 529, 532
(Fla. 1962); Allied Fid. Ins. Co. v. State, 415 So. 2d 109, 111 (Fla. 3d DCA 1982);
see also Kinder v. State, 779 So. 2d 512, 514 (Fla. 2d DCA 2000) (stating that
“[g]enerally, ‘shall’ is interpreted to be mandatory where it refers to some action
preceding the possible deprivation of a substantive right and directory where it
relates to some immaterial matter in which compliance is a matter of convenience”),
approved, No. SC01-37 (Fla. Oct. 17, 2002).   Consistent with those decisions, and
because there are significant and substantial liberty interests involved with the
involuntary and indefinite detentions provided for under the Ryce Act, we conclude
that the Legislature used the word “shall” to convey that the thirty-day time limit
was mandatory, although not jurisdictional.
Several district courts have examined the language of the Ryce Act to
determine whether the thirty-day time limit in section 394.916(1) should be
construed as mandatory or directory.   See Kinder v. State, 779 So. 2d 512, 515
(Fla. 2d DCA 2000) (mandatory); State v. Osborne, 781 So. 2d 1137, 1138 (Fla.
5th DCA 2001) (directory); State v. Reese, 773 So. 2d 655, 657 (Fla. 1st DCA
2000) (directory).
For example, we find the reasoning in the Second District’s opinion in
Kinder on this issue to be on point and compelling:
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Under the Act, once a commitment petition is filed and probable
cause is found to exist, the detainee is required to be held without
possibility of release until he or she is brought to trial.   See §
394.915(5), Fla. Stat. (1999).   The only limit placed upon this
detention is the statutory provision providing that a detainee be
brought to trial within thirty days of his or her initial detention.
Moreover, although section 394.916, Florida Statutes (1999), allows
for the thirty-day period to be continued, it also provides that such
continuance may only be granted when the detainee will not be
substantially prejudiced by it.   See § 394.916(2).   We conclude that the
intent of the legislature in enacting the thirty-day time limit was to
ensure that detainees be brought to trial without undue delay.
Therefore, we also conclude that the thirty-day time limit is mandatory.
Kinder, 779 So. 2d at 514-15 (emphasis added).   We agree with this reasoning and
conclusion.
On the other hand, in Osborne, the Fifth District Court determined that
because there is no language in the Ryce Act to indicate that the Legislature
contemplated a consequence for failure to bring a respondent to trial within thirty
days, the mandated thirty-day trial requirement is merely directory.   Osborne, 781
So. 2d at 1139.   The absence of explicit language detailing a “consequence” for not
holding trial, however, does not allow us to ignore the plain mandatory language the
Legislature has provided based upon similar provisions in the Kansas act.
Furthermore, the Fifth District in Osborne failed to recognize the principle
that the word “shall” should ordinarily be construed as mandatory according to its
plain meaning, especially when it refers to an action preceding the denial of a
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substantive right.   To support its finding that the Ryce Act’s language is directory,
the Fifth District relied on two opinions where this Court held that the word “shall”
could, under special circumstances, be viewed as directory.   See Belcher Oil Co. v.
Dade County, 271 So. 2d 118, 121 (Fla. 1972) (noting in a case involving the right
of a municipality to levy taxes on public utility services that “[a]lthough the term
‘shall’ normally has a mandatory connotation, in proper cases and particularly so
where required to conform to constitutional requirements, it may be construed as
permissive only”); Schneider v. Gustafson Indus., Inc., 139 So. 2d 423, 424 (Fla.
1962) (holding in a worker’s compensation case that the Industrial Commission’s
rule language stating that the appellant “shall” file transcripts within forty-five days
was directory).   Importantly, neither of these cases involved the significant
deprivation of an individual’s liberty rights.   Rather, they are examples of cases
where we have found that statutory language was directory either because it was
related to some immaterial matter in which compliance was a matter of
convenience, or because constitutional requirements required such an interpretation.
In addition to the statute's plain language, a basic rule of statutory
construction provides that the Legislature does not intend to enact useless
provisions, and courts should avoid readings that would render part of a statute
meaningless.   See Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996); Forsythe v.
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Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla. 1992).   If
the thirty-day time period in section 394.916(1) were held to be merely directory
and could be routinely ignored without consequence, the limitations on
continuances listed in section 394.916(2) would essentially be rendered
meaningless.   As noted above, section 394.916(2), allows for a continuance, upon a
showing of good cause by one of the parties or by the court’s own motion, only
where the detainee will not be substantially prejudiced.6   Clearly, the fact that the
Legislature felt it was necessary to include a provision for continuance and limit the
occasions on which a continuance should be granted indicates that the Legislature
contemplated and intended that commitment proceedings would occur in a prompt
and timely manner.
INDEFINITE COMMITMENT
6.   In the instant case, no continuance was granted pursuant to section
394.916(2), which allows a party to request a continuance for good cause where the
respondent will not be substantially prejudiced.   For an illustrative comparison, see
Meadows v. Krischer, 763 So. 2d 1087, 1089-90 (Fla. 4th DCA 1999), where the
State requested a continuance before the thirty days had elapsed and the court
decided that a brief continuance was necessary so that the trial court and the parties
could review the procedures under “the new and somewhat confusing” Ryce Act.
See id.   In rejecting the respondent’s claim that he was not brought to trial within
the time period required by the Ryce Act, the Fourth District held that there had
been an adequate showing of good cause for the brief continuance and the
respondent had not established any substantial prejudice arising from the
continuance.   See id.
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Indefinite commitments under the Ryce Act clearly do not present situations
where compliance is a matter of convenience or inconsequential matters are at
issue.   To the contrary, under the Ryce Act, detainees could literally be committed
indefinitely for the rest of their lives.   The U.S. Supreme Court has stated that even
in civil commitments “[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).   “It is clear that
‘commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.’” Jones v. United States, 463 U.S. 354, 361
(1983) (quoting Addington v. Texas, 441 U.S. 418, 425, (1979)).   Obviously these
commitments involve serious substantive rights with constitutional implications.
Furthermore, as noted above, it appears that the Legislature intended that the
State would initiate commitment proceedings while the inmate is still incarcerated.
See § 394.915(1), Fla. Stat. (1999).   In Valdez v. Moore, 745 So. 2d 1009, 1012
(Fla. 4th DCA 1999), the Fourth District noted that the State in defending the
constitutionality of the Ryce Act had
repeatedly emphasiz[ed] that in the typical case the procedures in the
act will be carried out while the person is still incarcerated pursuant to
the criminal sentence, and accordingly the absence of a probable
cause hearing would not violate due process.   Although that does
seem to have been how the legislature contemplated that the Act would
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work, and under those circumstances there would be no due process
problem created by the lack of an adversarial probable cause hearing,
the Act did not work that way for these petitioners.   Nor has the state
cited any authority which would justify detaining these petitioners, who
have completed their sentences, beyond their release dates without an
adversarial probable cause hearing.
In fact, based on our review of the Ryce Act and the available evidence of
legislative intent discussed above, we conclude that the Legislature intended that
ordinarily the review process of potential sexual predators would be concluded
while the person was still in prison.7   The initial ex parte probable cause
determination described in section 394.915(1) applies primarily to respondents who
are still in prison, and a finding of probable cause under this provision simply
requires that a respondent be transferred immediately to a secure facility upon the
expiration of the sentence.
7.   We would note that while the Legislature intended that the Ryce Act
operate in this way, there is evidence that in practice this is not occurring and that
often people are being detained for long periods after their scheduled release date
without being taken to trial.   The Florida Legislature's Office of Economic and
Demographic Research has started releasing statistics which list the procedural
distribution of people in the process of being committed under the Ryce Act.   See
“End of the Month Status of Probable Cause Cases” and “Time from Referral to
Trial to Commitment or Release,”
http://www.myflorida.com/edr/Conferences/Criminal_Justice/predator.htm.
According to the statistics, the overwhelming majority of the people currently in the
system are detainees awaiting trial after the expiration of their sentences.   While the
numbers do not indicate the cause of the delay, the number of persons being
detained has consistently increased, which indicates that compliance with the
thirty-day time limit for trial is rarely being practiced.
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Civil 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.   See Addington, 441 U.S. at 425 (holding that civil
commitment for any purpose constitutes significant deprivation of liberty that
requires due process protection); Pullen v. State, 802 So. 2d 1113, 1117 (Fla.
2001) (noting that “an individual who faces involuntary commitment to a mental
health facility has a liberty interest at stake”).
Presumably, if the State followed the time periods established in the Ryce
Act, the commitment trial would take place well in advance of the respondent’s
date of release from prison and the due process concerns of commitment beyond
imprisonment would be substantially alleviated.   Under this scheme, the State would
have multiple opportunities to initiate and pursue these commitments before the
respondent's criminal sentence expires.8
However, as the Second District Court of Appeal has pointedly recognized,
virtually the only safeguard and limitation put on the State's continued detention is
the statute’s requirement that the court “shall” conduct a trial within thirty days of a
determination of probable cause.   See Kinder, 779 So. 2d at 515.   Further, as the
8.   On the other hand, when circumstances cause a legitimate delay but the
inmate is scheduled to be released, the statute provides that a person can still be
detained pending trial.
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Fourth District Court of Appeal has emphasized, “the continued confinement of a
person after he has served his full sentence for conviction of a crime is serious
enough to warrant scrupulous compliance with the statute permitting such
confinement, not to mention the applicable constitutional provisions.”   Johnson v.
Dep’t of Children & Family Servs., 747 So. 2d 402, 403 (Fla. 4th DCA 1999).
In sum, if the word “shall” is not construed as mandatory, a serious question
would arise as to whether the Ryce Act itself provides the proper constitutional
protections to detainees, particularly as it has been applied to the respondent in the
instant case.   Accordingly, based on the importance of the obvious liberty rights at
stake, and consistent with the Kansas act upon which Florida’s law is modeled, we
agree that the Legislature intended that there should be “scrupulous compliance”
with the statutory thirty-day time limit set forth in section 394.916(1).   See id.
Adversarial Probable Cause Hearing
While the Legislature intended that the commitment trial should take place
well in advance of the respondent’s date of release from prison, it also apparently
recognized that in some cases there could be situations where the alleged offender
was set to be released before the commitment trial had taken place.   Thus, the
Legislature created a separate, secondary adversarial probable cause determination.
See § 394.915(2); see also Reese, 773 So. 2d at 657 (noting that the Ryce Act
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contemplates two different probable cause determinations: an ex parte
determination in accordance with 394.915(1) and an adversarial probable cause
hearing described in 394.915(2)).9   The adversarial probable cause hearing
described in section 394.915(2) can be held “[u]pon the expiration of the
9.   The facts in Reese are somewhat different from those present in the
instant case.   In Reese, the respondent was scheduled to be released on September
1, 2000, but on August 30, 2000, the State Attorney petitioned the trial court to
have the respondent committed pursuant to the Ryce Act.   See id. at 656.   On the
same day, the trial judge entered an order finding probable cause that the
respondent was a sexual predator, and directed the Department of Corrections to
deliver him into the custody of the Department of Children and Families.   See id.
Additionally, the trial court appointed counsel for the respondent and scheduled an
adversarial hearing for October 3, 2000.   See id.   At the adversarial hearing, the trial
court apparently found probable cause again that the respondent was a sexual
predator.   See id.   On October 23, 2000, the respondent moved to dismiss the
proceedings because he had not been brought to trial within thirty days of the initial
September 1, 2000, ex parte finding of probable cause.   See id.   The First District
noted that “[b]y its terms, the Act requires an adversarial probable cause hearing
only where the respondent is not tried within 30 days of the initial ex parte probable
cause determination and the failure to begin the trial is not the result of a delay
caused by the respondent.”   Id. at 657.   Therefore, once a judge finds probable
cause after an adversarial hearing pursuant to section 394.915(2), the thirty-day
clock for commencement of the trial in section 394. 916(1) is reset and begins to
run again.   The respondent in Reese, who had the benefit of counsel on the same
day that the court made its initial ex parte probable cause determination, moved for
dismissal “only 20 days after the court had determined, after an adversarial
proceeding, that there was probable cause that Reese is a sexually violent
predator.”   Id.   Thus, in Reese the thirty-day time limit for trial had not yet run
when the respondent filed his motion to dismiss.   By way of comparison, in the
instant case the respondent was not appointed counsel or served with the petition
until six days before the time for trial was set to expire.   The State did not request
any continuance and the respondent was thereafter detained for an additional two
months without a trial or other adversary hearing before the petition was dismissed.
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incarcerative sentence and before the release from custody.”   Thus, this secondary
probable cause determination was apparently intended by the Legislature to be a
fallback procedure for persons who were entitled to release from prison but still
had not been brought to trial under the commitment petition.   The adversarial
probable cause hearing also provides the person with more rights than the initial ex
parte probable cause determination (i.e., the right to counsel and to present
evidence).   See § 394.915, Fla. Stat. (1999).
The only additional guidance given by the Legislature for when to hold such
a hearing was that the trial court “may conduct an adversarial probable cause
hearing if it determines such hearing is necessary” and that the court should hold
the hearing only in cases “where the failure to begin trial is not the result of any
delay caused by the respondent.”                                                        § 394.915(2), Fla. Stat. (1999).   Furthermore,
section 394.916(1) does not distinguish between the ex parte or adversarial
probable cause determinations for purposes of calculating the thirty-day time limit
for trial.
In the instant case, the due process problems we have discussed above may
well have been alleviated if the court had held an adversarial probable cause hearing
early in the proceedings and nearer the time the appellee's criminal sentence
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expired.10   As noted above, the provision for an adversarial probable cause
determination appears to have been intended for such circumstances.   However, we
are not presented with that issue here since no adversarial probable cause hearing
was ever conducted during the appellee's continued detention after the expiration of
his sentence.
Mandatory v. Jurisdictional
While we conclude that the time provisions regarding the holding of a trial
were meant to be mandatory, we do not believe that the thirty-day period was
10.   When the Washington Supreme Court examined its similar sexual
offender civil commitment statute, which lacked a time limit for holding an
adversarial hearing, it determined that constitutional due process concerns required
an adversarial probable cause hearing to be held within seventy-two hours of the
initial detention.   See In re Young, 857 P .2d 989, 1011 (Wash. 1993).   Further,
many other states, including Kansas, have statutes that contain the requirement that
an adversarial probable cause hearing or its equivalent occur within seventy-two
hours of a defendant’s detention.   See, e.g., Ariz. Rev. Stat. Ann. § 36-3705
(Supp. 2001); Iowa Code § 229A.5 (2001); Kan. Stat. Ann. § 59-29a 05 (Supp.
2001); N.D. Cent. Code § 25-03.3-11 (2002); S.C. Code Ann. § 44-48-80 (West
2002).
Florida, by way of contrast, only requires the multidisciplinary team to give
its recommendation and assessment to the state attorney within seventy-two hours
of the person’s detention.                                                             § 394.9135(2), Fla. Stat. (1999).   Thus, unlike these
other states that require an adversarial hearing within seventy-two hours of
detention, Florida’s use of a seventy-two hour time period after detention provides
no explicit due process protection and only speeds the process by which the team
makes a recommendation to the state on whether to pursue the case.   However, by
providing the seventy-two hour period, it is apparent that the Legislature was aware
of the same concerns that other states had addressed more directly.
-22-

intended as a rigid jurisdictional bar to further proceedings.   In addition to the
provision for an adversarial probable cause determination, section 394.916(2)
provides that “[t]he trial may be continued upon the request of either party and a
showing of good cause, or by the court on its own motion in the interests of
justice, when the person will not be substantially prejudiced.”   By this language, the
Legislature demonstrated that there will be instances when the trial court will retain
jurisdiction beyond the thirty-day time period.   In cases where the alleged sexually
violent predator will not be substantially prejudiced, a trial court is given authority
to grant a continuance when one of the parties shows good cause or the court
determines that the interests of justice so dictate.
While statutory language can be construed to be both mandatory and
jurisdictional, it does not follow that mandatory language must always be construed
as jurisdictional.   Similarly, we conclude here that although the language requiring
the trial to be held within thirty days is mandatory, the language is not necessarily
jurisdictional because there are limited instances where the court would retain
jurisdiction beyond the thirty-day time period, most notably where a continuance
for good cause or in the interest of justice has been granted under section
394.916(2).
The district courts in Kinder, Reese, and Osborne also made determinations
-23-

that the language was not jurisdictional.   Kinder, however, is the only decision that
appears to recognize the analytical distinction between jurisdiction and whether the
provision should be construed as mandatory or directory.   See Kinder, 779 So. 2d
at 515 (holding that the thirty day time limit was mandatory, but not jurisdictional).11
Furthermore, because these indefinite commitments are supposed to
ordinarily take place while the person is still incarcerated, there will be situations
where the trial court would make a probable cause determination, but the thirty-day
time period runs while the respondent is still incarcerated.   Under those
circumstances, a “mandatory” trial would not have occurred, and the State may be
entitled to a continuance, because the respondent would not be substantially
prejudiced.   A person already imprisoned would obviously carry a greater burden
to demonstrate prejudice than one who would be free but for the Ryce Act
detention.   Thus, in such circumstances, the trial court would retain jurisdiction
11.   The First District and the Fifth District appear to have treated the
analysis of whether the language was “jurisdictional” or “mandatory”
interchangeably.   See Reese, 773 So. 2d at 657 (stating that because
“commencement of trial may be extended upon 'a showing of good cause,' it
appears that the time limitation is directory, and does not establish a procedural bar,
so as to divest the trial court of jurisdiction to proceed”); Osborne, 781 So. 2d
1139 (noting that the court “considered Osborne's contention that the statutory time
period is mandatory, and thus jurisdictional”).
-24-

even though the mandated time period for trial had expired.
RIGHT TO COUNSEL
We also note that this case also presents substantial constitutional concerns
involving delay in appointing counsel for defendants facing continued detention
after expiration of their criminal sentences.   Under the Ryce Act, it is not clear when
a potential sexually violent predator should be appointed counsel.   The Ryce Act
simply states that counsel should be provided “[a]t all adversarial proceedings
under this act,” but does not indicate when in the process counsel should be
appointed.                                                                                 § 394.916(3), Fla. Stat. (1999).   However, we conclude that for the
appointment of counsel to be meaningful, it is apparent that the appointment would
have to occur as soon as proceedings are initiated, and certainly prior to or early in
the thirty-day time period for bringing the case to adjudication.12   The
12.   To deal with the due process problems regarding the timing of the
adversarial probable cause hearing and the appointment of counsel, the Fourth
District has suggested several procedural rules to be used in Ryce Act proceedings.
In Valdez v. Moore, 745 So. 2d 1009 (Fla. 4th DCA 1999), three Jimmy Ryce
defendants petitioned the Fourth District for habeas relief.   The defendants had
completed their prison sentences but had been held for nine months pursuant to the
Ryce Act without a hearing.   See State v. Kobel, 757 So. 2d 556, 559 (Fla. 4th
DCA 2000) (describing Valdez facts).   The Fourth District concluded that due
process requires certain minimum procedures for civil commitment, including an
adversarial probable cause hearing with the opportunity to be heard, present
evidence, and cross-examine witnesses.   See Valdez, 745 So. 2d at 1012.   The
court stated that “it constitutes a denial of due process to confine persons, who
have already completed their sentences, without an adversarial probable cause
-25-

hearing.”   Valdez, 745 So. 2d at 1012.   The court ordered that the defendants be
released unless an adversarial probable cause hearing was conducted within five
days of the opinion.
In Meadows v. Krischer, 763 So. 2d 1087, 1090 n.4 (Fla. 4th DCA 1999),
the Fourth District interpreted Valdez’s five-day requirement as being “upon
request.”   The Fourth District further added:
We are concerned about the late appointment of counsel in this
case since petitioner was held under the Ryce Act for nearly three
weeks before he was appointed counsel.   We hold that at a minimum,
a Ryce Act respondent should be advised of the right to appointed
counsel when served with the order or warrant for custodial detention.
This could be accomplished within the warrant itself or by separate
document served by the court.   By way of analogy, the Baker Act
requires that within one working day after the filing of a petition for
involuntary commitment, the court must appoint the public defender,
unless the respondent is otherwise represented by counsel.
Id. at 1091 n.5.
Finally, in State v. Kobel, 757 So. 2d 556, 561 (Fla. 4th DCA 2000), the
Fourth District stated:
A Ryce Act respondent might choose to forego an adversarial
probable cause hearing and insist on a trial on the merits as early as
possible.   Requiring that an adversarial probable cause hearing be held
within five days after a request for one places that decision in the
hands of the party best equipped to decide whether or not to exercise
that right.
Later the court noted:
Section 394.9135(3) contemplates that a judge will make an ex parte
probable cause determination immediately after the state attorney’s
filing of a petition.   We further hold that if the judge finds probable
cause, the judge must also appoint an attorney for the respondent, if
he is not already represented by counsel.   Pursuant to Meadows, the
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appointment of counsel represents a significant step in assuring that the
proceedings meet constitutional muster.
CONCLUSION
We conclude, as did the Second District in Kinder, that based upon the
unambiguous and plain meaning of language used in the Ryce Act, as well as the
obvious constitutional concerns of the Legislature in enacting a scheme for a
person’s involuntary and indefinite commitment, that the Legislature intended the
time period for bringing the commitment issue to trial is critical to the validity of the
overall scheme and is therefore mandatory, although not jurisdictional.   This
construction is also consistent with the Legislature's apparent intention that Ryce
Act proceedings be conducted well before a sexual offender's prison sentence
expires, so as to minimize the risk of either indefinite detentions without a trial, or
the premature release of Ryce Act offenders.13
state must serve a copy of the petition and the orders emanating from
the ex parte probable cause determination on both the respondent and
the appointed attorney.
Id. at 563 (citation omitted).
13.   The dissent expresses the concern that the Court's opinion will have the
effect of releasing sexual offenders into the community based on a deadline for
trial.   However, if the Ryce Act operates the way the Legislature envisioned, these
cases will be presented while offenders are still in prison.   Clearly, the Legislature's
goal was to protect the public in a way that did not violate the constitutional rights
-27-

Accordingly, for the reasons stated in this opinion, we affirm the judgment of
the trial court.   We also approve the Second District’s opinion in Kinder and
disapprove Reese and Osborne to the extent they are inconsistent with this opinion.
It is so ordered.
ANSTEAD, C.J., and SHAW, PARIENTE, LEWIS, and QUINCE, JJ., concur.
HARDING, Senior Justice, dissents with an opinion, in which WELLS, J.,
concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
HARDING, Senior Justice, dissenting.
I respectfully dissent.   I would find the thirty-day time period in section
394.916(1), Florida Statutes (Jimmy Ryce Act ) to be directory rather than
mandatory.   I would adopt the following reasoning of the Fifth District Court of
Appeal:
We next considered Osborne's contention that the statutory
time period is mandatory, and thus jurisdictional, because the
Legislature used the word "shall" in the provision establishing the
thirty-day time period, although it provided no consequences for the
State's failure to comply.                                                            § 394.916, Fla. Stat.   (1999).   Our Supreme
Court has acknowledged on multiple occasions that, in appropriate
circumstances, the term "shall" can merely be directory.   For example,
in Schneider v. Gustafson Indus., Inc., 139 So. 2d 423, 424 (Fla.
1962), the court noted that statutes setting the time when a task is to be
guaranteed to individuals who were potentially subject to a lifetime of civil
commitment.
-28-

done are regarded as merely directory where no provision restraining
the doing of it after that time is included.   See also Belcher Oil Co. v.
Dade County, 271 So. 2d 118, 121 (Fla. 1972) (noting that although
"shall" normally has a mandatory connotation, in proper cases it may
be construed as permissive only); Comcoa, Inc. v. Coe, 587 So. 2d
474, 477 (Fla. 3d DCA 1991) (holding that according to the context
and surrounding circumstances, a statutory "shall" is to be read as
"may" and vice versa).   Applying this case law to the instant facts, we
construe the instant language as being directory because the quoted
provision is a time provision with no specified consequences for
non-compliance.   The First and Fourth Districts have reached the
same conclusion.
State v. Osborne, 781 So. 2d 1137, 1139 (Fla. 5th DCA 2001).   At least one other
state court has reached a similar conclusion.   See People v. Curtis, 223 Cal. Rptr.
397 (Cal. Ct. App. 1986).   In Curtis, the court reasoned:
“[I]n evaluating whether a provision is to be accorded mandatory or
directory effect, courts look to the purpose of the procedural
requirement to determine whether invalidation is necessary to promote
the statutory design.”
With respect to time-limit statutes the general rule is that
“requirements relating to the time within which an act must be done are
directory rather than mandatory or jurisdictional, unless a contrary
intent is clearly expressed.” . . . [A] proper test of legislative intent is
to focus on the likely consequences of holding a particular time
limitation mandatory, in an attempt to ascertain whether those
consequences would defeat or promote the purpose of the enactment.
We . . . conclude the 30-day statute at issue was designed to
serve a public administrative purpose and was not intended to provide
protection or benefit to defendant.   Moreover, we believe the
previously described purposes of section 6316.2 would be defeated if
the time provision at issue were given mandatory effect.   It would be
anomalous to construe a statute designed to prevent the release of
-29-

dangerous people into the community in such a way that an
inconsequential violation of a time requirement would allow the very
release the statute is designed to prevent.
223 Cal. Rptr. at 399-400 (citations omitted).   The Jimmy Ryce Act is similar to
California’s mentally disordered sex offender statute in that its purpose is to protect
Floridians from sexually violent predators.14   The majority’s opinions in this case
14. Section 394.910, Florida Statutes, entitled “Legislative findings and
intent,” states:
The Legislature finds that a small but extremely dangerous
number of sexually violent predators exist who do not have a mental
disease or defect that renders them appropriate for involuntary
treatment under the Baker Act, part I of this chapter, which is intended
to provide short-term treatment to individuals with serious mental
disorders and then return them to the community.   In contrast to
persons appropriate for civil commitment under the Baker Act,
sexually violent predators generally have antisocial personality features
which are unamenable to existing mental illness treatment modalities,
and those features render them likely to engage in criminal, sexually
violent behavior.   The Legislature further finds that the likelihood of
sexually violent predators engaging in repeat acts of predatory sexual
violence is high.   The existing involuntary commitment procedures
under the Baker Act for the treatment and care of mentally ill persons
are inadequate to address the risk these sexually violent predators pose
to society.   The Legislature further finds that the prognosis for
rehabilitating sexually violent predators in a prison setting is poor, the
treatment needs of this population are very long term, and the
treatment modalities for this population are very different from the
traditional treatment modalities for people appropriate for commitment
under the Baker Act.   It is therefore the intent of the Legislature to
create a civil commitment procedure for the long-term care and
treatment of sexually violent predators.
-30-

and in State v. Kinder, No. SC01-37 (Fla. Oct. 17, 2002), will have the very effect
that the California court warned against: dangerous people will be released into the
community due to an inconsequential violation of a time requirement.
WELLS, J., concurs.
An Appeal of Judgment of the Circuit Court, in and for Hillsborough County,
J. Rogers Padgett, Judge, Case No. 99-08722 Div. Z - Certified by the District
Court of Appeal, Second District, Case No. 2D00-1374
Robert A. Butterworth, Attorney General, Dyann W. Beaty, Assistant Attorney
General, Tampa, Florida,   and Richard L. Polin, Assistant Attorney General,
Miami, Florida,
for Appellant
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer,
Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellee
-31-

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