Motion to Confirm Defendant May Live with Parents

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 3.800(c), Florida Rules of Criminal Procedure, and hereby respectfully requests that this Court enter an order, confirming the Defendant may live with his parents, in their home, in Florida (upon the Defendant’s [date] release from prison), and in support thereof, states as follows:

1. On [date], the Defendant entered into an agreement to plea to Count 1 of the Information, which charged the Defendant with traveling to meet a minor, in violation of Fla. Stat. §847.0135(4)(a).1
2. On [date] the Defendant was sentenced to Count 1 of the Information. The Defendant received a withhold of adjudication, and is currently serving 11 months and 29 day jail sentence, with anticipated release on [date]. A copy of the Defendant’s Judgment is attached as Exhibit A. In addition to the incarceration portion of the sentence, the Defendant was also sentenced to 5 years of “probation.” Specifically, the Judgment specified the probation was to be:
Sex offender probation. Probation may be transferred to Florida. Standard conditions of sexual offender probation as detailed in F.S. 948.30.

Judgment at 7 (emphasis added).
3. Similarly, the Order of Sex Offender Probation (a copy of which is attached hereto as Exhibit B) confirmed that the Defendant received a withhold of adjudication (Order at 1), provided that “Probation may be transferred to Florida” (Order at 2), and, as the first listed “Special Condition,” imposed the this condition:
Standard conditions of sex offender probation as detailed in F.S. 948.30.

Order of Sex Offender Probation at 2 (emphasis added).
4. As noted, the Defendant intends to return to Florida, to live with the Defendant’s parents. However, the Defendant’s Probation Officer has informed the family, and counsel, of a potential issue with that residence, due to the existence of a Florida municipal ordinance, which imposes more stringent distance requirements for sexual predators than does the Florida Statute.
5. Of course, the Defendant was not designated as a “sexual predator.” Judgment at 5. Rather, in both the Judgment and the Order of Sex Offender Probation, the Defendant was sentenced as a sex offender, and ordered to serve a sex offender probation term – pursuant to “F.S. 948.30.”
6. Among its other provisions, F.S. §948.30 specifies the following special condition:

If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, child care facility, park, playground, or other place where children regularly congregate, as prescribed by the court.

(emphasis added).
7. In anticipation of the Defendant’s release, the Defendant’s family was notified by the Defendant’s Probation Officer, that the Defendant could not live in their home, where the Defendant had been residing prior to the Defendant’s arrest, as it has a “playground” – within 2,500 feet of their home.
8. The Probation Officer has informed undersigned counsel this potential 2,500 feet condition is a product of application of the Florida Code of Ordinances Sec. 685.102 (a copy of which is attached as Exhibit C) – which is entitled: “Sexual predators residency requirements.”
9. However, in reviewing that municipal ordinance, the Probation Officer kindly pointed out that it only applies to sexual predators, and, of course, as further noted, the Defendant was not sentenced as a sexual predator. Rather, the Defendant was sentenced as a sexual offender.
10. Thus, this 2,500 foot rule does not apply to the Defendant, for, inter alia, the following reasons:
a. This municipal ordinance is inapplicable, since it applies only to sexual predators, and the Defendant is not such a person.
b. This municipal ordinance cannot vitiate the statutory language in F.S. §948.30, which clearly specifies the 1,000 feet rule.
c. This municipal ordinance cannot vitiate the statutory language in F.S. §948.30, which clearly specifies the location of the defendant’s residence, with regard to the proximity of a school, child care facility, park, playground, or other place where children regularly congregate, is that which is prescribed by the court. Here, this Honorable Court has adopted the requirements of F.S. §948.30, which clearly specifies the 1,000 feet rule.
d. This municipal ordinance cannot vitiate the plain language of both the Judgment and the Order of Sex Offender Probation – both of which provide for “sex offender probation as detailed in F.S. 948.30” – which, of course, contains the 1,000 feet rule (not 2,500 feet).
11. The Defendant plans to return to Florida, and live with the Defendant’s parents, just as the Defendant did prior to incarceration. F.S. §948.30 requires that the distance between the Defendant’s parents’ home and the playground “be measured in a straight line.” That straight line measurement is demonstrated in the attached Composite Exhibit D, which consists of a Google Maps printout from the residence of the Defendants parents (Florida), to the playground, which confirms the park is some 1,288.21 feet from the residence, and thus not in violation of the 1,000 feet rule. The second Google Maps printout (contained in Exhibit D) shows a close up of the [name] Clubhouse, demonstrating where the playground is actually located (since it is somewhat difficult to see on the first photograph).
12. These same Google map exhibits have been provided to the Probation Officer. However, the Probation Officer has advised counsel “that DOC uses the Sex Offender Residential Restrictions (SORR) Database to check addresses not google maps and the offenders’ proposed residence did not pass the 1,000 ft. requirement” – based on this SORR Database. The Probation Officer advises that the SORR Database is not public record. Thus, we have no way to compare that unknown database with the known accuracy of Google Maps.
13. The Probation Officer has requested that counsel obtain an order from the Court, to provide this further specific guidance to the Probation Office. The Probation Officer has further advised his office will honor any order of the Court, regarding this matter.
14. In addition, counsel has provided a copy of this motion to Assistant State Attorney [name], Esq. (who was the prosecutor assigned to this case), who has likewise permitted counsel to inform the Court the State has no objection to the Court granting this motion.
15. Respectfully, the Defendant has no other place to live, and has peaceably lived at this location for some time.2 Moreover, the Defendant had absolutely no criminal history, prior to this arrest, and the charge to which the Defendant plead did not involve an actual physical child.
16. As noted, the Probation Officer has advised that counsel should obtain an order, permitting the Defendant to remain at the Defendant’s parents’ residence. Otherwise, the Defendant can not permit the Defendant to do so.
17. The State graciously assisted the Defendant in resolving this matter with the prior plea. In doing so, counsel reasonably assumes the State, and, at sentencing, this Honorable Court, afforded substantial deference to a psychological report prepared by Dr. [name], who evaluated the Defendant. A copy of this report was provided previously to the State, and was Exhibit E to our December 14, nine page sentencing presentation, which was delivered to this Honorable Court. The State Attorney’s Office, and the judicial officers of this Court, have, for many years, relied on the wisdom and expertise of Dr. N. in evaluating and treating individuals within the criminal justice system. Respectfully, Dr. [name]’s evaluation here, which, in part, assisted in the resolution of this case, is also instructive as to the propriety of the instant motion.
18. In this report, Dr. [name] provided the following important conclusions:

The psychosexual testing appears to be interpretable. The data does not contain any indications of deviant sexual interests or attitudes, nor were there any significant risk indicators. It is noted that the evaluation did include an objective measurement of sexual interest provided by the Abel Screen. This data did not suggest any sexual interest in prepubescent children or teens of either sex.

With respect to mental health issues, the Defendant presented as continuing to struggle with some depression, though the Defendant stated it is not as severe as it was at the time of the alleged incident. The results of the personality testing were valid and interpretable. This data suggests the Defendant may be impulsive at times, but there were no other significant findings.

A statistically based risk assessment based on the available information indicates that the Defendant falls in a low risk category. In this regard, the results of the Static 99-R clearly place the Defendant in a low risk category and there were no indications of behaviors or symptoms that are statistically associated with increased recidivism. The Defendant’s sexual history was verified by a sexual history polygraph examination.

Based upon the available information, it is my opinion that the Defendant falls in the lowest risk category and that sexual offender registration is not needed to ensure community safety. While I believe the Defendant would benefit from outpatient psychosexual counseling to enhance the Defendant’s insight and develop a relapse prevention plan, this could be appropriately provided on an outpatient basis during the period of supervision.
19. Thus, the psychological testing confirms (1) although the Defendant may be impulsive at times, there were no other significant findings, (2) there were no indications of deviant sexual interests or attitudes, (3) there were no indicators that the Defendant has any sexual interest in prepubescent children or teens of either sex, and (4) there were no indications of behaviors or symptoms that are statistically associated with increased recidivism – all of which further confirms the wisdom of applying the 1,000 feet statutory rule, and not some inapplicable municipal ordinance.
20. In addition, the Defendant underwent a sexual history polygraph, performed by [name]. [Name] asked the Defendant several preliminary questions, which are included in the Defendant’s report (a copy of which was attached as Exhibit G to our December 14, nine page sentencing presentation). [Name] then asked four (4) specific questions, which are detailed in the last page of the report. Those questions were as follows:
(1) Have you ever had sexual contact with an underage person?
(2) Have you ever looked at child pornography?
(3) Other than your offense have you ever traveled to meet a minor you met online?
(4) Do you masturbate to sexual fantasies of underage persons?
21. The Defendant answered “No” to all four of these questions. [Name] reported there were no significant responses to these questions, and therefore it is his opinion that the Defendant was truthful during the examination, and thus, passed the polygraph, as to all four questions.
22. It should also be noted that the Defendant’s mother is a stay-at-home mother, and thus she will be the Defendant’s built-in “chaperone” and supervisor, the entire time.
23. Given the time-sensitivity of this matter, counsel requests that this Honorable Court entertain this motion without need for a hearing, and the State Attorney’s Office has advised they are satisfied with the Court ruling on this matter in chambers.

WHEREFORE, the Defendant respectfully prays this Honorable Court modify the condition of the Defendant’s probation, allowing the Defendant to live in the Defendant’s parents’ residence, located in Florida.