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be "civil in nature." See Mitchell v. State, 911 So. 2d 1211, 1213 (Fla. 2005).


Even so, we have repeatedly emphasized the procedural safeguards provided by the Act that ensure an individuals constitutional rights are protected. In holding the Act constitutional in the plurality opinion in Westerheide v. State, 831 So. 2d 93 (Fla. 2002), we specifically relied on the "range of procedural safeguards to the individuals" provided by the Act:


The parties being subjected to this state action are limited to those who have exhibited "past ***ually violent behavior and [have] a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." Although the individuals liberty interest is at stake, that "interest is not absolute" and the "individuals constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context" provided that "the confinement takes place pursuant to proper procedures and evidentiary standards." Confinement under the Ryce Act is limited to those individuals who are likely to engage in acts of ***ual violence if not confined in a secure facility for long-term control, care, and treatment. Further, the act provides a range of procedural safeguards to the individuals, including the assistance of counsel and mental health professionals at commitment proceedings, the right to a jury trial, the right to appeal a ***ually violent predator determination, at least a yearly mental health examination to determine whether the persons condition has so changed that it is safe for the person to be discharged, the right to petition for release, and in court hearings for the release of a committed person, the state bears the burden of proving by clear and convincing evidence that the persons mental condition requires continued confinement.


Id. at 104-05 (citations and footnotes omitted) (quoting Kansas v. Hendricks, 521




U.S. 346, 356-57 (1997)).






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Although Larimore has not raised a constitutional challenge to the Act, because the Act can impose on an individual a substantial deprivation of liberty-- one that is of indeterminate duration--our construction of the Act must be conducted with due regard to "the basic tenets of fairness and due process." State




v. Atkinson, 831 So. 2d 172, 174 (Fla. 2002). In this light, we first examine the provisions of the Act to determine if the Legislature intended that persons against whom civil commitment proceedings are brought must be in lawful custody when those proceedings are initiated.


Custody Under the Act


As has previously been noted by this Court, as well as by the First District Court of Appeal below, the Legislature appears to have specifically contemplated that an individual would be lawfully in the States custody when civil commitment proceedings are commenced under the Act. State v. Goode, 830 So. 2d 817, 825 (Fla. 2002) ("[I]t appears that the Legislature intended that the State would initiate commitment proceedings while the inmate is still incarcerated." (citing §




394.915(1), Fla. Stat. (1999))); Larimore, 917 So. 2d at 357 ("[T]he Act as amended clearly contemplates that a commitment petition should be filed before a person is released from total confinement . . . ."). The Act provides that the





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commitment process is initiated by the "agency with jurisdiction."1 This is done in one of two ways--either by giving notice to the multidisciplinary team and state attorney under section 394.913(1), Florida Statutes (2004), which begins the detailed process under that section, see §§ 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that persons "immediate release from total confinement" under section




394.9135(1), Florida Statutes (2004). This latter procedure is followed to initiate commitment proceedings where it is anticipated that the individual will be immediately released from "total confinement" for any reason. See § 394.9135(1), Fla. Stat. (2004).2







1. "Agency with jurisdiction" is defined in section 394.912(1), Florida Statutes (2004), as follows:




[T]he agency that releases, upon lawful order or authority, a person who is serving a sentence in the custody of the Department of Corrections, a person who was adjudicated delinquent and is committed to the custody of the Department of Juvenile Justice, or a person who was involuntarily committed to the custody of the Department of Children and Family Services upon an adjudication of not guilty by reason of insanity. § 394.912(1), Fla. Stat. (2004). This definition of "agency with jurisdiction" presupposes that the person is in custody.







2. "Total confinement" is defined in section 394.912(11), Florida Statutes (2004), as follows:




[T]he person is currently being held in any physically secure facility being operated or contractually operated for the Department of





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Section 394.913(1)(a) indicates that the person is to be in custody when proceedings are commenced because it specifically provides that the notice must be given to the multidisciplinary team and the state attorney at least 545 days prior to the persons anticipated release from total confinement if the person is in custody of the Department of Corrections.3 Notice must be given at least 180 days prior to release from a residential commitment if the person is in custody of the Department of Juvenile Justice or, where the person has been found not guilty of a ***ually violent offense by reason of mental incapacity or insanity, from the custody of the Department of Children and Family Services. See § 394.913(1)(b)-




(c), Fla. Stat. (2004).


Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services. A person shall also be deemed to be in total confinement for applicability of provisions under this part if the person is serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason. § 394.912(11), Fla. Stat. (2004).







3. Section 394.913(1) provides in pertinent part:


Except as provided in s. 394.9135, the written notice [to the multidisciplinary team] must be given: (a) At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections, except that in the case of persons who are totally confined for a period of less than 545 days, written notice must be given as soon as practicable. § 394.913(1), Fla. Stat. (2004).





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Specifically, section 394.913(1) provides that the agency with jurisdiction "shall give written notice to the multidisciplinary team, and a copy to the state attorney of the circuit where that person was last convicted of a ***ually violent offense." Subsection (1) further provides that if the person was never convicted of a ***ually violent offense in Florida, but has been convicted of such an offense in another state or federal court, a copy of the notice shall be given to the state attorney of the circuit where the person was last convicted of any offense in this state. Subsection (1) provides that if the person is being confined in this state pursuant to interstate compact, notice shall also be given to the state attorney "of the circuit where the person plans to reside upon release" or, if no residence in this state is planned, the state attorney "in the circuit where the facility from which the person to be released is located." Id. (emphases added).


Subsection (2) of section 394.913 sets forth the information that the agency with jurisdiction must provide to the multidisciplinary team, including information such as the individuals name, identifying characteristics, criminal history, mental health, mental status, and documentation of institutional adjustment. Subsection




(2)(e) states that, "[i]f the person was returned to custody after a period of supervision, documentation of adjustment during supervision and any treatment received" shall be provided to the multidisciplinary team.






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Section 394.913(3) provides for establishment of the multidisciplinary team or teams, and states that each team shall include at least two licensed psychiatrists or psychologists. Subsection (3) also provides that the assessment and evaluation shall include a review of the individuals institutional history and treatment record, the persons criminal background, and any other relevant factor. Subsection (3)(e) provides that within 180 days after receiving notice, there shall be a written assessment and recommendation, which shall be provided to the state attorney and to the Department of Children and Family Services. Following the receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney may file a petition in the circuit court alleging that the person is a ***ually violent predator. § 394.914, Fla. Stat. (2004). Section 394.915(1) then provides that upon finding probable cause to believe that an individual is a ***ually violent predator, "the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the persons incarcerative sentence expires." § 394.915(1), Fla. Stat. (2004) (emphasis added).


Similarly, section 394.9135(3), which applies in cases where the individual is in total confinement but subject to immediate release, instructs that upon finding probable cause in a proceeding initiated under that section, "the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla. Stat. (2004)





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(emphasis added). Section 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when "the anticipated release from total confinement of a person who has been convicted of a ***ually violent offense becomes immediate for any reason." § 394.9135(1), Fla. Stat. (2004) (emphasis added).


This would occur, for example, where the inmate obtains an order for release from an incarcerative sentence.4 Additionally, this section would apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1)5 have not yet been followed to initiate commitment proceedings and retain the person in custody.







4. This interpretation is confirmed by Senate staff analyses on chapter 99- 222, Laws of Florida, which added section 394.9135. The Florida Senate Committee on Children and Families staff analysis stated that the section addresses situations where, "because of unforeseen circumstances, it is anticipated that a persons release from total confinement will become immediate. This section . . . would assist in dealing with cases such as when inmates successfully challenge gain-time and early release statutes and win early judicially mandated release from prison." Fla. S. Comm. on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999) [hereinafter Child. & Fams. Comm. SB 2192 Analysis]; see also Fla. S. Comm. on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135 "provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes") [hereinafter Judiciary Comm. SB 2192 Analysis]. The section is intended to assist the Department of Children and Families and state attorneys with expediting cases in such circumstances. Child. & Fams. Comm. SB 2192 Analysis at 25; Judiciary Comm. SB 2192 Analysis at 12.







5. Section 394.915(1) provides:





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Section 394.9135(1) provides that where an individual currently in total confinement is about to be released, "the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility." § 394.9135(1), Fla. Stat. (2004). This provision allows the multidisciplinary team seventy-two hours after this transfer to "assess whether the person meets the definition of a ***ually violent predator." § 394.9135(2), Fla.

Stat. (2004). If the multidisciplinary team determines that the person does not meet the definition of a ***ually violent predator, the person is immediately released. If the team determines that the person does meet the definition, "the team shall provide the state attorney . . . with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter." Id. After that, within forty-eight hours of receipt of the written assessment and recommendation When the state attorney files a petition seeking to have a person declared a ***ually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a ***ually violent predator. If the judge determines that there is probable cause to believe that the person is a ***ually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the persons incarcerative sentence expires. § 394.915(1), Fla. Stat. (2004) (emphases added).
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