Florida/Georgia Personal Injury & Workers Compensation

...bationer conditions. On August 3, 2006, the trial court accepted the plea and modified the remainder of the term of Fields' probation to drug offender probation. Eleven days later, the State filed a motion to impose electronic monitoring pursuant to section 948.063, Florida Statutes (2006). On September 12, 2006, over defense objection, the trial court granted the State's motion and ordered electronic monitoring. Fields advances two arguments on appeal. First, Fields contends that section 948.063 does not mandate electronic monitoring in this case because she was on probation for a driving offense, not a sexual offense. We disagree. Section 948.063(1) clearly provides that the trial court's obligation to require electronic monitoring after a revocation of probation is not dependent on whether the defendant was on probation for a sexual offense or some other felony. (1) If probation or community control for any felony offense is revoked by the court pursuant to s. 948.063(2)(e) and the offender is designated as a sexual offender pursuant to s....

...d if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition of the subsequent term of probation or community control. (Emphasis added). Section 948.063(2) [2] governs those instances where the trial court has modified a defendant's probation rather than revoked it....

...ant's sentence within sixty days to include the condition mandated by chapter 948. Id. at 798; see also Kiriazes v. State, 798 So.2d 789 (Fla. 5th DCA 2001). AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. NOTES [1] § 322.34(5), Fla. Stat. (2005). [2] Section 948.063(2) provides: If the probationer or offender is required to register ....

...se an electronic monitor if a person was JLA qualified. Thereafter, the trial court imposed electronic monitoring as a modification to Blue's condition of the reinstated probation. The record is unclear whether the trial court believed that the JLA (section 948.063, Florida Statutes (2008)) applied to Blue's sentence or whether the court relied upon section 948.30(2), Florida Statutes (2008), as a statutory basis to impose electronic monitoring....

CIKLIN, J. Ronnie Witchard appeals from the trial court’s order which modified the conditions of his sex offender probation to include mandatory electronic monitoring pursuant to section 948.063, Florida Statutes (2008). Section 948.063 mandates the electronic monitoring of certain sex offenders who violate their probation and remain on probation after the violation. Because we hold that section 948.063 does not apply to probationers such as Witchard whose offenses were committed before the statute’s effective date, we remand for resentencing to allow the trial court to exercise its discretion to determine whether electronic monitoring should be imposed....

...“within that purview, as a result of this particular violation of supervision.” The applicability of the JLA to Witchard is the sole issue on appeal. Witchard argues that the trial court erred in finding that he was subject to the provisions of section 948.063 that require a trial court to order GPS monitoring as a condition of probation for certain probationers who violate probation and are reinstated. The statute became effective on September 1, 2005, but Witchard committed all of his crimes before June 1, 2004. Thus, Witch-ard argues that section 948.063 does not apply to him either because the legislature did not intend for the mandatory GPS monitoring condition to apply to probationers whose crimes were committed before the statute’s effective date, or because retroactive applicat...

...of the United States and Florida Constitutions. We agree. Because the issue raised by Witchard is one of constitutional and statutory interpretation, our review is de novo. See Fla. *409 Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). Section 948.063(1), Florida Statutes, mandates the electronic monitoring of certain sex offenders who violate their probation and remain on probation after the violation....

...f age or older, and if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition of the subsequent term of probation or community control. § 948.063(1), Fla. Stat. (2008) (emphasis added). Section 948.063(1) was enacted as part of the JLA and became effective on September 1, 2005....

...Witchard was convicted for crimes that were committed between June 1, 2001 and May 31, 2004. Thus, all of Witchard’s crimes were committed before the statute became effective. From the text of the JLA, it is unclear if the Florida Legislature intended section 948.063 to apply to probationers who committed their crimes before the JLA’s effective date....

...The category which is applicable to this case is a “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” See id. Thus, the issue here boils down to whether the mandatory electronic monitoring requirement of section 948.063 constitutes a greater punishment than was applicable to Witchard’s crimes when com *410 mitted....

...not seeking to modify the probation order to require sexual offender registration, but to add electronic monitoring”); Fields v. State, 968 So.2d 1032, 1033-34 (Fla. 5th DCA 2007) (finding no double jeopardy violation where the trial court ordered section 948.063 electronic monitoring forty days after the initial modification of probation because the trial court had failed “to impose a mandatory penalty at the original sentence” (emphasis added)); Harroll v....

...If the mandatory electronic monitoring was only a civil remedy, there would have been no reason for the legislature to limit the application of this subsection. Based on the Florida appellate courts’ treatment of electronic monitoring as a form of criminal penalty, we believe that applying section 948.063 to a probationer whose crimes were committed before September 1, 2005 would violate the constitutional prohibition of ex post facto laws. As such, we construe section 948.063 as applying only to probationers whose offenses were committed on or after September 1, 2005 — the effective date of the JLA....

...1st DCA 2009). In both cases, the appellate courts found that the mandatory electronic monitoring requirements of the JLA were inapplicable because the underlying crimes were committed before the JLA’s effective date. Although neither case addresses section 948.063, 4 the defendants in both cases were being resentenced following violations of probation....

...In its opinion, the court does not address the issue of whether mandatory electronic monitoring constitutes a form of criminal punishment. The state argues that even if we hold that the mandatory imposition of electronic monitoring is a form of criminal penalty, section 948.063 does not impose a greater punishment than was available before its enactment because the trial court could have imposed electronic monitoring even before section 948.063 was enacted....

...same sentence under the sentencing guidelines in place when the crime was committed because, under the new guidelines, the sentence was no longer reviewable because it now fell within the presumptively reasonable range). In summary, we hold that the section 948.063 requirement that a trial court impose electronic monitoring on certain sex offenders who violate their probation only applies to probationers whose offenses occurred on or after September 1, 2005. 5 Witchard’s offenses were all committed on or before May 31, 2004; therefore, section 948.063 does not apply to him....

...Both cases dealt with the section 948.30(3), Florida Statutes, requirement that a trial court imposing an initial sentence which includes probation on certain sex offenders must include mandatory electronic monitoring as a condition of the probation. Section 948.063, however, deals with reinstatement or modification of probation following a violation of probation. . We recognize that section 948.063(2) did not become effective until July 1, 2006....

...2006-235, § 2, at 2710, Laws of Fla. That subsection requires the trial court to modify the sex offender probation to include electronic monitoring for any violation of probation even if the trial court does not revoke the probation as a result of the violation. § 948.063(2), Fla. Stat. (2008). We decline to make any determination as to whether section 948.063(2) would be applicable to a probationer whose offenses were committed on or after September 1, 2005, but before July 1, 2006.

...On April 30, 2009, Petrae filed a motion to modify his probation. In this motion, *1014 Petrae requested that the trial court remove the condition of probation requiring him to wear a GPS monitoring bracelet, which the trial court granted over the State's objection. As the State argued below, section 948.063, Florida Statutes, mandates the electronic monitoring of certain sex offenders who violate their probation and for whom probation is reinstated....

...f age or older, and if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition of the subsequent term of probation or community control. § 948.063(1), Fla....

...e time of sentencing or at any other time, and the plea agreement did not impose electronic monitoring as a condition of probation. He also argued that he did not meet the criteria for the mandatory imposition of electronic monitoring under sections 948.063 and 948.30(3), Florida Statutes (2008) and therefore, the probation office was without authority to impose such a condition....

...By the plain language of section 948.30(3), the trial court was prohibited from granting Floyd’s motion to modify the terms of his probation to delete mandatory electronic monitoring. Reversed and Remanded. WARNER and POLEN, JJ., concur. . The Jessica Lunsford Act ("JLA”) is codified in section 948.063, Florida Statutes....

WELLS, Judge. Earl Brewer appeals from an order modifying his probation to require electronic monitoring. Because the transcript of the modification hearing clearly confirms that the trial court intended to apply section 948.063 of the Florida Statutes and not the Jessica Lunsford Act as recited in the court’s written order, we reverse and remand for correction of the order modifying probation to correctly reflect the trial court’s oral ruling....

...4th DCA 2011). In that case, the Fourth District held that the requirement that a trial court impose electronic monitoring on certain sex offenders who violate their probation applies only to probationers whose offenses occurred on or after the effective date of the statute. 68 So. 3d at 411 (construing § 948.063, Florida Statutes)....

...Mr. McCarron had violated section 790.23(1)(a). -5- Ms. Holcomb assumed that on account of the alleged violations Mr. McCarron would be required to submit to electronic monitoring in accordance with section 948.063(2), Florida Statutes (2013)....

...The State admits that Bell's offense was committed before the effective date of the Act. See § 948.30(3) (stating that electronic monitoring must be imposed on sex offenders whose offenses occurred on or after September 1, 2005). Nevertheless, the State contends that section 948.063 provides a basis for the imposition of electronic monitoring. Section 948.063 provides in pertinent part: (2) If the probationer or offender is required to register as a sexual predator under s....

...control, the court shall nevertheless modify the probation or community control to include electronic monitoring for any probationer or offender not then subject to electronic monitoring. Because we conclude that Bell did not violate his probation, section 948.063(2) is inapplicable to Bell's case.

...ctronic monitoring “as required by the Jessica Lunsford Act.” Colvin timely appealed. Colvin raises several issues on appeal, only one of which merits discussion. He argues that the trial court’s imposition of electronic monitoring pursuant to section 948.063, Florida Statutes — the Jessica Lunsford Act — violates the constitutional prohibition against ex post facto laws because the underlying offenses were committed before that statute’s enactment....