Opinion
No. 1D17-5063
11-27-2018
Charles W. BURNSED, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
Charles W. Burnsed, pro se, Petitioner. Rana Wallace, General Counsel, Commission on Offender Review, Tallahassee, for Respondent.
Charles W. Burnsed, pro se, Petitioner.
Rana Wallace, General Counsel, Commission on Offender Review, Tallahassee, for Respondent.
B.L. Thomas, C.J.
This petition for writ of certiorari seeks review of an order denying a petition for writ of habeas corpus. Petitioner raises four arguments, three of which were not raised below, and which we therefore will not discuss. Our review is limited to a determination of whether the circuit court afforded due process and whether it observed the essential requirements of law. See Sheley v. Fla. Parole Comm'n , 720 So.2d 216 (Fla. 1998). We deny the petition.
Petitioner is an inmate in the custody of the Department of Corrections. In 1997, he entered a plea to attempted capital sexual battery and four counts of handling or fondling a female child under the age of sixteen. The parties stipulated to an offense date of 1991. The trial court declared Petitioner a sexual predator, but, in light of the stipulation, the Second District subsequently reversed that declaration, finding that the sexual predator statute specifically applied only to convictions for crimes committed on or after October 1, 1993. See Burnsed v. State , 743 So.2d 139 (Fla. 2d DCA 1999).
Petitioner was released onto conditional release for the first time in 2010 and his supervision was to last until 2026. The Florida Commission on Offender Review imposed 30 conditions of release, including special condition 28, which mandated that Petitioner was not to access the internet "until your sex offender treatment program has completed a risk assessment and approves and implements a safety plan for your access to the internet." Petitioner signed these conditions, but included the caveats "under 947.1405 my offense date is 1991 I am not subject to these conditions." From 2010 to 2015, Petitioner was alleged to have violated the conditions of his conditional release six times. Each time, the Commission elected to continue his conditional release supervision.
In April of 2016, the Commission issued a warrant alleging that Petitioner twice violated special condition 28 by accessing the internet on his cell phone to search "Kowasaki." Petitioner entered a plea of guilty, and a Commission Investigator recommended that supervision be reinstated. Instead, the Commission voted to revoke Petitioner's conditional release.
Petitioner challenged the revocation of his conditional release by filing a petition for writ of habeas corpus in the circuit court. In the petition, he argued that he had been placed on conditional release for crimes he never committed. He also asked the circuit court to "offer an opinion" on the mandatory language in section 947.1405, Florida Statutes, noting that in Biller v. State , 618 So.2d 734 (Fla. 1993), the Florida Supreme Court found that conditions imposed as part of probation must be related to the offense.
Petitioner first argues to this Court that the Commission violated his due process by imposing special conditions of conditional release that applied to sexual predators. He argues that because he committed his offenses in 1991 and is not a sexual predator, section 947.1405(7), Florida Statutes, which requires the imposition of special sexual offender conditions for offenses committed after 1995, cannot apply to him. This Court rejected this argument in Grace v. Florida Parole Commission , 985 So.2d 1213, 1214-15 (Fla. 1st DCA 2008), where we found that "[a]lthough the special sexual offender conditions imposed on the petitioner are similar to the mandatory special sexual offender conditions set forth in section 947.1405(7), Florida Statutes (2005), the FPC's discretionary authority under section 947.1405(6), Florida Statutes (1990), to impose any special conditions it considers warranted based on its review of the petitioner's record was not limited in any way." As in Grace , here the Commission had the discretion to impose any special conditions it deemed warranted, including special condition 28. See also Velez v. State , 23 So.3d 808 (Fla. 2d DCA 2009).
Petitioner also argues that the special terms and conditions had no relationship to the crime for which he was convicted, citing Spano v. State , 60 So.3d 1108 (Fla. 4th DCA 2011). Even if we agreed with Petitioner's characterization of the special conditions imposed, Spano is not applicable here; in that case, the Fourth District struck a special condition of probation , applying the rule that " ‘[a] special condition of probation cannot be imposed if it is so punitive as to be unrelated to rehabilitation.’ " Id. at 1109 (quoting Williams v. State , 474 So.2d 1260, 1260 (Fla. 1st DCA 1985) ). See also Biller , 618 So.2d 734. The restrictions on special conditions of probation do not apply to special conditions of conditional release. By statute, the Commission may impose any special conditions it deems warranted after a review of an offender's record. See § 947.1405(6), Fla. Stat. (1990) ("The commission may impose any special conditions it considers warranted from its review of the release plan and recommendation.").
DENIED .
Makar and Winsor, JJ., concur.
ON MOTION FOR REHEARING AND REHEARING EN BANC
PER CURIAM.
We deny Petitioner’s motion for rehearing and rehearing en banc but write to address one of Petitioner’s arguments. In one ground of the motion, Petitioner argues that this Court erred in failing to consider Packingham v. North Carolina , 137 S. Ct. 1730 (2017), which he submitted as supplemental authority. He argues that the case established that denying sex offenders access to the internet is an unconstitutional denial of his First Amendment right to free speech.
We disagree with Petitioner’s analysis of Packingham . The statute at issue in that case made it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages." 137 S. Ct. at 1733. Packingham was indicted for violating this statute and moved to dismiss on grounds that the charge against him violated the First Amendment. Id. at 1734. The United States Supreme Court found the law was invalid, as it prevented sex offenders from engaging in the legitimate exercise of their First Amendment rights, and the government had not met its burden to show that the law was necessary or legitimate to serve its purpose. Id. at 1737.
The law at issue in Packingham applied to sex offenders who had finished serving their sentences, and a violation of the statute was a felony offense. In contrast, the prohibition at issue in the present case was a condition of Petitioner’s conditional release. Federal courts have declined to find that the reasoning in Packingham applies to conditions of supervised release. See United States v. Carson , 924 F.3d 467, 473 (8th Cir. 2019) (citing cases). See also United States v. Knights , 534 U.S. 112, 119 (2001) ("Inherent in the very nature of probation is that probationers ‘do not enjoy "the absolute liberty to which every citizen is entitled." ’ Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (citations omitted)).
The Supreme Court’s decision in Packingham does not change our conclusion that the Commission had discretionary authority to impose any conditions of conditional release that it deemed warranted. See Grace v. Fla. Parole Comm’n , 985 So. 2d 1213, 1214-15 (Fla. 1st DCA 2008).
All of Petitioner’s motions are otherwise denied, and the Commission’s motion to strike is denied as moot.
RAY, C.J., and B.L. THOMAS and MAKAR, JJ., concur.