Opinion
No. 74-1570.
October 3, 1975. Rehearing Denied November 12, 1975.
Appeal from the Circuit Court, Broward County, M. Daniel Futch, Jr., J.
Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
CROSS and DOWNEY, JJ., concur. MAGER, J., concurs specially, with opinion.
Although a review of the record does not reflect the existence of any reversible error with respect to the points involved in this appeal thereby supporting an affirmance I cannot help but question the ultimate disposition made in this case.
When the Florida legislature adopted chapter 801, F.S., known as the "Child Molester Act", it was clearly their intention to establish a flexible approach for the treatment of child molesters by providing either penal and/or rehabilitative measures. Schroeder v. State, Fla.App. 1971, 252 So.2d 270. It is difficult to fathom how this legislative intent is promoted or how the interest of society is furthered when a twenty-six year old individual who while serving as a scoutmaster is convicted of committing a lewd, lascivious or indecent act with or upon a minor child and is sentenced to the state prison for twelve years.
We compound a reprehensible and unnatural act by shipping the perpetrator to a penal institution with an atmosphere and surrounding which are more than likely to result in promoting rather than treating the very condition giving rise to the criminal act. Washington v. State, Fla. 1974, 302 So.2d 401. At the very least, an individual who has committed an offense within the provisions of the Child Molester Act (and specifically, the defendant herein) ought to be submitted to psychiatric examination with a report of the findings presented to the trial judge to ascertain whether sentence to a penal institution or commitment to a treatment facility is warranted.
If our system is capable of permitting perpetrators of crimes (whether they be the so-called street crimes or those involving public corruption) to walk the streets without having served a day in any institution or only having received a mere slap on the wrist, our system can certainly withstand the impact created by a concern for those who may need and can be helped by treatment other than in a penal institution. A firm and swift application of the law is a deterrent to crime but is never a substitute for justice and fairness.
While what has transpired in the instant case is not "reversible error" nor a circumstance where the trial court has acted in a manner not authorized by law, nevertheless it is hoped that our judicial system in its quest to dispense justice does not lose sight of its flexibility and fairness in the achievement of its ultimate goal.