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January 16, 2003
MIAMI -- An appeals court Wednesday ruled that the Florida Sexual Predator Act, the state's version of Megan's Law, is unconstitutional because it lacks provisions to let judges determine defendants' actual threat to the community on an individual basis.
The decision by a three-judge panel of the 3rd District Court of Appeal overturned a circuit court decision to have Ferman Carlos Espindola, 23, register as a sexual predator because of his admission of involvement in a sexual battery with multiple perpetrators.
After pleading guilty last May to one count of sexual battery of a physically incapacitated victim, Espindola registered as a sexual predator with the Florida Department of Law Enforcement. Espindola, as someone guilty of sexual battery with multiple perpetrators, was automatically determined under state law to be a sexual predator.
Under Megan's Law, named for the 7-year-old girl from New Jersey who was raped and murdered by a convicted sex offender living in her neighborhood, predators must register with police agencies.
"We find that in the absence of a provision allowing for a hearing to determine whether the defendant presents a danger to the public sufficient to require registration and public notification, the Florida Sexual Predators Act violates procedural due process," the panel wrote..
The office of Attorney General Charlie Crist said it would not comment about the ruling because Crist was traveling Wednesday. A call to the assistant attorney general assigned to the case, Fredericka Sands, wasn't returned.
The FDLE said it will continue operating under the auspices of the existing Megan's Law legislation. FDLE Commissioner Tim Moore, who said he was advised by the Attorney General's Office on Wednesday that a rehearing would be aggressively pursued, said he believes the sexual predator act will eventually be found constitutional.
"We might be fixing something that's not broken here, and I'd hate to see that happen," Moore said. ". . . The public has a right to be informed on who's in their communities. "Moms have a right to know who's around the bus stops with their children in the morning. There is a sense of urgency here."
John Eddy Morrison, the Miami attorney who represented Espindola, also said he expects the state to appeal.
In Florida, appeals court decisions usually stand as state law unless the Supreme Court intervenes because of a conflicting ruling from another district or unless the appellate judges ask for a high court review.
Espindola and another man, Yhir Nino, were charged in December 2001 with sexual battery after having sex with a drugged woman at a hotel. Nino, 22, bought the unidentified victim a drink and drugged it. She and Espindola consumed it, according to court documents.
The victim and Espindola both lost consciousness after finishing the drink and were taken to the hotel by Nino, according to court records. The victim has said in court that she is fearful of Nino but still considers Espindola to be a friend and is not afraid of him.
Espindola will assist prosecutors in their case against Nino, whose trial is to begin this month.