NEXT CASE ON THIS MORNING'S DOCKET IS MITCHELL VERSUS STATE OF FLORIDA. ,,

MAY IT PLEASE THE COURT .

CHIEF JUSTICE: WAIT UN TIL MR . DUFFY SITS DOWN. THANK YOU.

MAY IT PLEASE THE CO URT. COUNSEL. ROBERT FREEMAN ON BEHALF OF MR . MITCH HE WILL. THE MAIN MITCHELL. THE MAIN ISSUE BEFORE THIS COURT TO DAY IS WHETHER ORNOT THE AUTOMATIC STAY R ULE OF APPELL ATE PROCEDURE 901.32 FALLS UNDER THE "JIMMY RYCE" ACT . I WOULD ALSO L IKE TO SPEND A LITTLE TIME DISCUSSING THE MERITS ISSUE IN MR . MITCH HE WILL'S CASE , WH ICH WAS IN MR. MITCHELL'S CASE, WHICHALSO WAS DECI DED BY HEAL , I WILL ARGUE - - BY HA LE, REQUIRES THAT VIOLATION FOR A SEX UAL OF FENSE IS THE ONLY VIOLATION.

THE ONLY WAY W E CAN RECEDE FR OM THAT ISSUE IS TO RECEDE FROM HAL E?

THE FACT THAT HALE HAS BEEN DECIDED WOULD MOOT OUT THE ISSUE WITH RESPECT TO MR . MITCHELL, BUT I WOULD POINT OUT TO THE COURT, THERE AREA NUMBER OF OTHER IN STANCES , WHERE THE AUTOMATIC STAY PROVISION OF THE RULES OF APPELLATE PROCEDURE SHOULD NOT APPLY TO THE "JIMMY RYCE" ACT . AN I AM TAL KING ABOUT THE MERITS ISSUE.

EXCUSE ME?

I AM TALKING ABOUT THE MERITS ISSUE THAT YOU SAID WE HAD DECIDED ADVERSELY IN HALE.

COR RECT.

IN ORDER TO G RANT YOU RELIEF ON THAT ISSUE , WEWOULD HAVE TO RECEDE FROM HALE.

THAT WOULD BE CORRECT, AND MY POSI TION ON THAT WOULD BE, WHICH I WOULD LIKE TO DISCUSS TODAY , IS THAT THIS COURT DID NOT ADD RESS THE FACT THAT THERE , ITWOULD BE A VIOLATION OF SUBSTANTIVE DUE PROCESS , TO APPLY THE "JIMMY RYCE" ACT TO SOMEBODY WHO IS NOT PRESENTLY INCARCERATED FOR SEXUALLY VIOLENT OFFENSE.

WAS THAT THE GROUND ON WHICH THE DISTRICT COURT GRANTED RELIEF OR DECIDED THIS CASE ? DUE PROCESS.

YOUR HONOR , IT WAS RAISED IN THE TRIAL COURT, AND I WOULD POINT OUT TO THE COURT , IN THE RECORD PAGE , R -4 AND R-39, IT WAS RAISED IN THE TRIAL COURT.THE TRIAL COURT GR ANTED RELIEF AND DISMISSED THE PETITION, B ASED O N STATUTORY CONSTRUCTION. IT WAS, A LSO , RAISED IN THE F IRST DISTRI CT COURT OF APPEAL , AND THE FIRST DISTRICT COURT OF APPEAL DIDNOT ADDRESS IT IN ITS DECISION, BUT IT HAS BEEN R AISED UNDER SUBSTANTIVE DUE PROCESS, FROM THE TRIAL COURT TO THE FIRST DISTRICT , ALL ALONG.

L ET ME ASK YOU , ON THE STATE ISSUE , YOU AGREED , DO YOU NOT , THAT EVEN IF THERE IS AN AUTOMATIC STAY, AND EVEN IF WE HOLD THAT IT APPLIES T O "JIMMY RYCE" ACT C ASES , THAT DOESN'T ST OP A RESPONDENT IN A "JIMMY RYCE" ACT CASE FROM SE EKING TO DISSOLVE THE STAY IN THE TRIAL COURT, BASED ON THE PARTICULAR CIRCUMSTANCES OF THAT CASE. IS THAT R IGHT?

THAT'S CORRECT. THAT IS PRECISELY WHAT HAPPENED IN THIS CASE. AFTER THE STATE FI LED ITS CONCURRENTLY WITH THIS NOTICE OF APPEAL , IT FIL ED A NOTICE OF RELI ANCE ON THE AUTOMATIC STAY PRO VISION 9.310 AND THEN I HAD GONE AHEAD AND MO VED TO V ACATE THE STAY IN THE TRIAL COURT , W HICH WOULD HAVE DENIED , AND THEN I SOUGHT REVIEW IN THE FIRST DISTRICT COURT OF APPEAL , ON A 2-TO -1 DECISION , THEY FOUND THAT THE AUTOMATIC STAY APPL IES TO JIM RICE PROCEEDINGS . JUDGE PADOVANO DISSENTED , AND AFT ER THE BRIEFS WERE FILED , IF I CORRECT MYSELF , IN DECEMBER , THE FI FTH DISTRICT COURT OF APPEAL , IN DUSHARME, AGREED WITH JUDGE PADOVANO 'S DISSENT IN MITCHELL, WITH JUDGE SO LIA DISSENTING IN THE DUSHARME CASE.

LE T ME ASK YOU THIS , DID YOU ARGUE ANYTHING OTHER THAN THE FACT THAT YOU BELIEVE THAT THE AUTO MATIC STAY PROVISION SHOU LD NOT BE APPLICABLE TO JIMMY R YCE. DID YOU ARGUE ANYTHING ABOUT , EVEN IF IT IS APPLICABLE,THEN, UNDER THE CIRCUMSTANCES OF THIS CASE , FOR WHAT EVER REASON , IT SHOULD BE DISSOLVED.

WELL , WE ARGUED WHAT COURTS LOOK TO , AS TO WHETHER OR NOT AUTOMATIC STAY SHOULD APPLY . A , THE LIKELIHOOD OF THE MARRIAGE, AND THEN, B , THE , WHAT WOULD BE THE HARM ON THE OTHER SIDE , AND IN T HIS PARTICULAR CASE , AT THE TIME THE MOTION TO DISMISS IN MITCHELL WAS FILED , A WAS A CASE O F FIRST IMPRESSION , AND THE ONLY COURTS THAT HAD ADDRESSED THE ISSUE AS TO WHETHER OR NOT THE CURRENT T ERM OF INCARCERATION HAD TO BE FOR A SEXUALLY VIOLENT OFFENSE , WHERE THE COURTS , IN THE DECISION IN I OWA , THE TRIAL COURT JUDGE , JUDGE F RANCES , SAID THAT THIS WASA CASE OF FIRST IMPRESSION , PARTICULARLY IN HIS ORDERWHICH IS ATTACHED TO THE APPENDIX, HE FOUND THAT HE COULD NOT SAY WHETHER OR NOTTHE STATE WOULD BE LIKELY, WOULD LIKELY B E SUCCESSFUL ON THE MERITS OR NOT.

SO BAS ICALLY WHAT WE HAVE HERE IS WE HAD A RULE THAT IS DESI GNED FOR CI VIL CASE S, AND ALTHOUGH WE HAVE TE RMED JIMMY RY CE TO BE CIVIL , WE ALL KNOW THAT INCARCERATIONIS INVOLVED, SO , OR COMMITMENT, INVOLUNTARY COMMITMENT, SO THERE IS ALOSS OF A LIBERTY INT EREST , HAS , IT SEEMS TO ME THAT , AND THIS HAPPENS, I THINK, M ORE OF TEN THA N NOT , THAT ALTHOUGH MAYBE THE RULES HAD NOT BEEN CHANGED UP UN TI L LAST YEAR OR WHATEVER , WHEN THIS STARTED , HAS THERE BEEN ANY ATTEMPT TO TR Y TO BR ING THIS UP THROUGH THE RULES PROCESS , SO THERE COULD BE SOME REASONED DISCUSSION A BOUT WHETHER PROCEDURES SIMILAR TO THE PROCED URES FOLLOWED IN A CRIMINAL CASE , WOULD APPLY IN THE JIMMY RYCE SITUATION?

I AM NOT A WARE AT TO AWARE AS TO WHETHER OR NOT THE APPE LLATE RULESCOMMITTEE HAS ADDRESSED THIS ISSUE , BUT I WOULD ENCOURAGE THIS COURT

AS A PUBLIC DEFENDER, YOU WILL AWE YOU AR E ALL VERY ACTIVE. WHY WOULDN'T YOU GO TO THE APPELLATE RULES COMMITTEE AND WORK THROUGH THIS, SO WECOULD HAVE SOME PROPOSALS IN PLACE AS TO W HETHER THE RULES SHOULD BE AMENDED?

BASED ON M Y CONVERSATIONS WITH OTHER PU BLIC DEFENDERSAND MAYBE MY O WN EXPERIENCE , IT IS NOT UNTIL THIS COURT RECOMMENDS THE APPELLATE RULES COMMITTEE OR THE CRIMINAL PROCEDURE RULES COMMITTEE TO LOOK AT SOMETHING, THAT THIN GS GET ACCOMPLISHED, SO IRRESPECTIVE OF THE WAY THIS COURT RULES IN THIS CASE , I WOULD ST ILL REQUEST THAT THE MATTER BE REFERRED TO THE APPELLATE RULES COMMITTEE.

WE HAVE SENT THE ISSUE ABOUT ADOP TING APPROPRIATERULES IN "JIMMY RYCE" ACT CASES , TO AN APPROPRIATE COMMITTEE, ACT UALLY , TO OUR CRIMINAL ADVISORY COMMITTEE. SO THAT WAS DONE SOME TIME A GO.

I AM AWAR E, WITH RE SPECT TO AS FAR AS THE P LEA BARGAIN , BUT QUITE FRANKLY I AM UNAWARE OF ANY OTHER COMMITTEE THAT IS WORKING ON THAT , ON THIS PA RTICULAR ISSUE.

HE LP ME WITH , WHAT OTHER INSTANCES I S THE STATE ENTITLED TO APPEAL , IN JIMMY RYCE PROCEEDINGS? FOR INSTANCE, IS THE STATE , IF A JURY , AF TER THERE IS A PROCEEDING WITH REF ERENCE TO THE F UTURE DANGNESS OR LIKELIHOOD OF COMMITTING THESE ACTS IN THE FU TURE , IF A JURY FIND FOR THE DEFENDANT IN A PROCEEDING LIKE THAT , D OES THE STATE HAVE A RI GHT TO APPEAL THAT?

MY POSITION HAS NOT COME UP FOR ME , AND MY PO SITION BEING THEY WOULD NOT , BUT

I AM NOT LOOKING FOR YOUR P OSITION , SO MUCH AS WHETHER OR NOT YOU HAVE ANALYZED THE STATUTORY SCHEME AND WHETHERYOU CAN TELL US IN WHAT OTHER INSTANCES , OTHER THAN THE JUDGE DISMISSING THE CASE, HAS OCCURRED HERE , WOULD THE STATE HAVE THE R IGHT TO APPEAL , AND THEREFORE WE WOULD LOOK AT THE CONSEQUENCE OF WHETHER OR NOT THE AUTOMATIC STAY , AND THERE WOULD HAVE TO BE F URTHER PROCEEDINGS. DO YOU KNOW WHAT OTHER TIMES?

I CAN GIVE THE COURT THREE EXAMPLES , WHERE THE AUTOMATIC STAY, THE STATE WOULD SEEK AN AUTOMATIC STAY. PRESIDENT FIRST WOULD BE IN STATE V G WITH RESPECT TO THE 30 STATE V GO ODE , WITH RESPECT TO THE 30-DAY R ULE. WHERE THE TRIAL IS TO BE HELD WITHIN 30 DAYS AND THE LAWYER WOULD GO AHEAD AFTER 30 DAYS PRESUMABLY FILE A MOTION TO DISMISS AND PRESUMABLY THEY WOULD FILE ANOTICE OF APPEAL AND NOTICE OF RELI ANCE ON THE AUTOMATICSTAY. IN THE CASE OF THIS COURT'S RECENT DECISION IN CAPEHEART , WHICH I BELIEVE CAME OUT ABOUT A WE EK AGO, WITH RESPECT TO THE PRO BABLE CAUSE FINDING BY THE TRIAL COURT JUDGE, IF THE PE TITION IS NOT SWORN TO , THIS COURT STATED IN CA P H E ART , THAT BASED ON THE M OTION TO DISMISS , IF THE STATE DID NOT FILE A SWORN-TO PETITION WITHIN THE 24 HO URS , THEYWOULD HAVE TO GO AH EAD AND FILE A SWORN-TO PETITION. IF YOU DIDN'T DO IT WITHIN THE 2 4 HOURS , THE STATEWOULD RELY ON THE APPEAL ANDTHERE WOULD BE ANOTHER AUTOMATIC STAY. ANOTHER EXAMPLE WOULD BE THIS COURT'S DECISION IN ATTKISSON , WHERE THIS COURTHELD THAT LAWFUL CUSTODY IS A PREREQUISITE TO THE FILING OF A PETITION UNDER THE"JIMMY RYCE" ACT . IF AN INDIVIDUAL IS NOT IN LAWFUL CUSTODY AT THE TIME OF THE "JIMMY RYCE" ACT, FOR EXAMPLE THE SE NTENCE EXPIRED PRIOR TO THEM FILING THEPETITION, THE TRIAL LAWYER WOULD GO AHEAD AND FILE THE MOTION TO DISMISS AND PRESUMABLY THE STATE WOULDFILE A NOTI CE OF APPEAL AND RELY ON THE AUTOMATIC STAY .

HAVE YOU RESEARCHED ANALOGOUS SITUAT IONS SUCH A S "BAKER" ACT PROCEEDINGS OR OTHER ME NTAL HEALT H COMMITMENT PROCEEDINGS , WHERE THERE MAY OR MAY NOT BE, THE STATE ARGUED

ANYTHING WESTERHEIDE , WHERE THE COURT , WHER E THE STATE ARGUED DIFFERENT POSITIONS. IRRESPECTIVE OF A NOTICE OF APPEAL BEING FILED OR NOT , A LOT OF THINGS CAN HAPPEN , BUT WITH RESP ECT TO THE"JIMMY RYCE" ACT , AS THISCOURT HAS HELD FOR EXAMPLE IN GOODE, I T INVOLVES SUCH A MASSIVE CURTAILMENT OF LIBERTY , THAT WE SHOULD PRESUME THAT LIBERTY AND DUE PROCESS SHOULD APPLY.

SO THE ANS WER IS YOUHAVEN'T , WE DON'T KNOW WHAT THE SITU ATION IS , "BAKER" ACT OR YOUR AUTOMATIC STAY PROVISION PLIK NBL "BAKER" ACT.

I AM NOT AWARE OF IT BEING APPLICABLE IN E ITHER " BAKER" ACT OR

YOU DON'T KNOW.

I DON'T KNOW.

IS THE ARGUMENT BE FORE US WHETHER THE RULE APPLIES OR WHETHER THE APPLICATION OF THE RULE HAS A , DEPRIVES YOUR CLIENT UNCONSTITUTIONALLY, OF A LIB ERTY INT EREST IN AN UNCONSTITUTIONAL MANNER, BECAUSE I SEE THAT IT IS TWO DIFFERENT THINGS. IT SEEMS TO ME THAT JUDGE PADOVANO 'S DISSENT WENT OFF ON A CONSTITUTIONAL ARGUMENT. DID YOU RAISE A CONSTITUTIONAL ARGUMENT IN THE TRIAL COURT , AS T O

WELL , YEA H. I ARGUED THAT THE APPLICATION OF THE RULE RESULTED I N A SERIOUS DEPRIVATION OF LIBERTY. SO I MEAN , YEAH , FROM STRICTLY CONSTRUE ING IT , I MEAN, THE RULE DOES SA Y IT APPLIES IN CIVIL CASES , AND THIS COURT HAS FOUND AS THE SUPREME COURT HAS FOU ND IN HENDRICKS, THAT T HESE ARE C IVIL CASES, BUT THE APPLICATION OF THIS RULE , BECAUSE IT INVO KES A LIBERTY INTEREST AND DUE PROCESS

WHY WOULDN'T THE ADEQUACY OF THE PROCEEDINGS TO CHALLENGE THE AUTOMATIC STAY , SUCH A S WHAT YOU DID HERE , O KAY , COMBINED WITH THE EXISTENCE IN THIS CASE OF THE EARLIER FINDINGS O F PROBABLE CA USE, WHY WOULDN'T THOSE TWO THINGS B E E NOUGH TO SATISFY ANY PROCEDURAL DUE PROCESS CONCERNS WITH THIS PROCEDUR E? IN OTHER WORDS , THE FACT THAT E VEN THOUGH THERE IS AN AUTOMATIC STAY , THAT YOU ARE ASSERTING, OF COUR SE, THAT THERE IS AN IMPORTANT LIBERTY INTEREST AT STAKE , WHEN YOU GO TO THE JUDGE AND ASK FOR A DISSOLUTION OF THAT STAY, AND THE N WE HADIN THIS RECORD , AN EA RLIER DETERMINATION , THOUGH, OF PROBABLE CAUSE , WHICH EVEN JUDGE PA DOVANO CITED TO AS BEING A REASONABLE B ASIS , PERHAPS , FOR , YOU KNOW FOR THE STAY. WHY WOULDN'T THOSE TWO FACTORS BE ENOUGH TO SATISFY ANY PROCEDURAL DUE PROCESS CONCERNS?

WELL, IN THIS CASE , THEMOTION TO DISMISS THE PETITION, ALSO , WAS A MOTION TO V ACATE THE PROBABLE CAUSE DETERMINATION.I THINK AS JUDGE PADOVANO POINTED OUT , I MEAN , THIS INDIVIDUAL IN THIS CASE , HAS NO PROCEEDING PENDING AGAINST HIM , A T THE TIME THE MOTION IS GRANTED . > > THIS IS WHY I ASKED YOU ABOUT OTHER INSTANCES IN WHICH THE STATE HAS THE R IGHT TO APPEAL . YOU DON'T HAVE A JURY DID DETERMINATION WHERE YOU D ON'T HAVE A DETERMINATION WHERE

IT DOES NOT SAY SO IN THESTATUTE.

THAT SITUATION WOULDPRESENT , CERTAINLY , A PRETTY SERIOUS ONE. THAT IS IF THERE HAS BEEN A DETERMINATION THAT THE DEFENDANT DOES NOT QUALIFY , AND THEN THE STATE HAS AN AUTOMATIC STAY , IT APPEARS, THAT WOULD PRESENT A COMPELLING SITUATION FOR NOT ALLOWING THE , YOUR CLIE NT TO REMAIN INCARCERATED .

WHAT I WOULD POINT OUT , JUSTICE ANSTEAD , IS I THINK , EVEN JU STICE SO LIA IN HIS DISSENT IN THE FI FTH DISTRICT COURT'S DECISION IN DUSHARME, EVEN DISAGREED WITH THE APPROACH T AKEN BY THE MITCHELL MAJORITY. AND, I MEAN , THE TWO JUDGES IN THE MITC HELL MAJ ORITY , S AID THAT, YE S, THE AUTOMATIC STAY APPLIE S. THE MAJO RITY IN DUSHARME TWO SAID, I GUESS WHERE I AM GOING

UNDER ANY VI EW THAT YOU HAVE , WOULD THE STATE , WITH A SHI FTING OF BURDENS , BE AT L EAST EN TITLED TO AS K THE TRIAL COURT TO ENTER A STAY ?

MY PO SITION I S THAT , BECAUSE OF THE LIBERTY INTEREST I N DUE PROCESS INTEREST AT STAKE , THE BURDEN SHOULD BE ON THE STATE , TO M O VE IN THE TRIAL COURT, AND ESTABLISH LIKELIHOOD OF SUCCESS ON THE MERITS , AND THE HARM , VE RSUS PLACING THE BURDEN ON RESPO NDENT.

SO IT I S A BURDEN-SHIFTING ISSUE THAT TO SOME EX TENT WERE PRESENTED.

CORR ECT, AND I THINK THIS COURT NEEDS TO LOO K AT THE HISTORICAL BA SIS WHICH WAS APPOINTED OUT IN THE OPINION , AS TO THE PO LICY BE HIND THE AUTOMATIC STAY. IT DEALT WITH LOSS OF MO NE Y DAMAGES THAT THE STATE WOULD BE , I S PRES UMABLY A SOLVENT ENTITY.

MY LAST QUESTION IS , HAVE YOU UP DATED YOUR RESEARCH, SO THAT WE CAN FEEL CONFIDENT HERE THAT THERE IS NOTHING FROM ANY OTHER STATETHAT WOULD BE HELPFUL ON THIS ISSUE ?

I HAVE NOT DONE AN OUT-OF-STATE SEARCH ON THIS PARTICULAR ISSUE . THE LAST FLORIDA CASE WAS THE DID YOU SH ARM' CASE IN WAS THE DUSHARME CASE IN DECEMBER, WHICH I THINK I SUPPLIED TO THE COURT.

THANK YOU.

CHIEF JUSTICE: YOU ARE SUBSTANTIALLY IN YOUR REBUTTAL .

OH,.

GOOD MORNING. MAY IT PLEASE THE COURT. MR . FRIEDMAN. T IME TOM DU FFY. I AM HERE ON BEHALF OF THE STATE TO DAY . OUR POSITION IS THERE IS NO REASON WHY THE RULE 9.310-B -2 SHOULD NOT APPLY.

DOES THE STATE HAVE A RIGHT TO APPEAL A JURY DETERMINATION THAT THE DEFENDANT DOES NOT QUALIFY?

THERE IS NO EXPLICIT RIGHT IN THE STAT UTE. LET ME TELL BECAUSE THE STATUTORY SCHEME IS, AS REGARDS MIST RIAL.

LET'S AS SUME THAT THE STATE DID HAVE A R IGHT. WOULD YOU AGREE THAT THAT WOULD CERT AINLY PRESENT A COMPELLING CIRCUMSTANCE AGAINST THE ENTRY OF ANY AUTOMATIC STAY , WHERE YOU ACTUALLY HAVE THE LA WFUL DETERMINATION THAT THE DEFENDANT DOES NOT QUALIFY?

YEAH. THAT WOULD AND COMPELLING.

AND YET ON ITS F AC E , AT LEAST , THE AUTOMATIC STAY WOULD SEEM TO APPLY JUST AS HERE , WITH A DISMISSAL. BUT YOU WOULD AGREE , AT LEAST , THAT IF THERE WAS AN APPEAL UNDER THOSE CIRCUMSTANCES , THAT IT BE VERY DIFFICULT FOR THE STATETO DEFEND AN AUTOMATIC STAY.

YES. I THINK THAT WOULD BE THE CASE.

I APPRECIATE THAT CAN DOR. WHY NOT , IF WE HAVE GOT A LIBERTY INTEREST HERE, WHICH COMES AW FULLY C L OSE TO THE CRIMINAL SITUATION OF INCARCERATION , WHY SHOULDN'T THE BE TTER RULE BE TO PUT THE BURD EN ON THE STATE, TO HAVE TO SHOW THE LIKELIHOOD OF SUCCESS AND THE OTHER FACTORS THAT WE ORDINARILY REQUIRE? WOULDN'T THAT BE A BETTER PROCESS, IN VIEW OF THE FACT THAT, IN T E RMS OF THE AC TUAL INTERESTS INVOLVED HERE, IT IS VERY SIMILAR TO INCARCERATION. WHY WOULDN'T THAT BE THE BETTER RULE , AND THE STATE WOULD, ST ILL , HAVE RE LIEF THERE .

IT MIGHT BE A BETTER RULE , IF IT WENT TH ROUGH A RULE-MAKING PROCESS. RIGHT NOW WE HAVE A RULE IN PLACE THAT PROTECTS INTERESTS .

YOU ARE NOT SAYING IT THAT SOMEBODY WHO DRAFTEDTHE RULE ON THE RULES COMMITTEE OR THAT THIS COURT , MANY , MANY YE ARS AG O, WHEN THAT WAS EN ACTED , LOOKED INTO A CRYSTAL BALL AND SAW THAT KANSAS WOULD PASS A LAW LIKE THIS AND EVENTUALLY FLORIDA WOULD GO ALONG , AND THE SUBSTA NTIAL CONSTITUTION , YOU KNOW , YOU ARE NOT T ELLING US

NO, SIR.

I APPRE CIATE THAT CAND OR.

JUSTICE CANTER O.

LE T ME ASK YOU SOMETHINGABOUT THE LIBERTY INTEREST , BECAUSE YOUR OP PONENT INSISTS THAT THERE IS A LIBERTY INTEREST HERE. MY UNDERSTANDING IS THAT THERE MAY BE A LIBERTY INTEREST INVOLVED , WHEN THEDEFENDANT OTHERWISE WOULD BE RELEASED FROM INCARCERATION , WERE IT NOT FOR THE J IMMY RYCE PROCEEDINGS, AND IN THAT PA RTICULAR CASE HERE , THE PROCEEDINGS WOULD BE INVOLVED?

THAT WAS NOT THE PAR TICULAR CASE HERE.

BU T IN TER MS OF SAYING THE AUTOMATIC STAY SHOULD REMAIN AND STAY IN PLACE OR WHETHER THE RULES BY THE TERM IT EMAPPLIES , OR WHETHER THE DEF ENDANT WHEN LIBERTY INTERESTS ARE INVOLVED CAN SEEK A DISSOLUTION OF THE STAY , THAT WOULD ENTER INTO THE ANALYSIS, WOULDN'T IT ?

YES.

BECAUSE THE DEFE NDANT CAN SAY THIS IS A SITUATIONWHERE I AM GOING TO GET OUT OF PR ISON , AND AS SOON AS THE COURT ENTE RS AN ORDER IN FAVOR OF THE DEFENDANT , THE DEFENDANT ON THE NEXT DAY, CAN ISSUE A MOTION TO DISSOLVE THE AUTOMATIC STAY , AND ALLOW THE DEFENDANT TO BE RELEASED FROM PRISON , PENDING THE APPEAL. CORRECT?

YES. YES.THAT'S CORRECT. AND THAT I S WHY I THINK JUDGE PADO VANO 'S DISSENT MISSED THE MARK. I HAVE A GREAT DEA L OF RESPECT FOR JUDGE PADO VANO BUT I HAVE TO DISAGREE WITH H IM IN THIS CASE . THERE WAS NO DUE PROCESSVIOLATION HERE A S COU NSEL HAS CONCEDED . HE WAS AB LE TO MOVE THE JUDGE TO SET IT ASIDE IN THE TRIAL COURT.HE WAS ABL E TO TAKE AN APPEAL FROM THAT TO THE DISTRICT COURT OF APPEAL , SO WE ALL ENDED UP FUSSING OVER THE TWO PRINCIPLE ISSUES THAT COME U P IN ANY STAY , WHEN IT S O UGHT TO DISSOLVE , WHICH IS THE LIKELIHOOD OF SUCCESS ON THE ME RITS , AND THE PROBABILITY OF IRREPARABLE HA RM.

DOES I T , THE PRESUMPTION OR THE POSTURE IN SHIFTING THE BURDEN TO AN INDIVIDUAL, WHO IN THIS CASE WOULD B E SUBJECT TO WALK FREE , THEPRESUMPTION THAT Y OU ARE NOT, THAT THIS IS GOING TO BE A STAY IN FA VOR OF THE STATE , D OES THAT IMPACT ANY CONSTITUTIONAL CONC ERNS OR INTERESTS THAT WE NEED TO ADDRESS ?

NOT IN THE ABSENCE OF AN EVIDENTIARY MA TTER. YOU HAVE THE BURDEN OF PERSUADING WHETHER YOU GO F IRST OR SECOND ON A LE GAL ISSUE.

LET ASSUM E THIS IS A CRIMINAL PROCEEDING.THE DEFENDANT, WHAT WAS THECRIME THAT THIS DEFENDANT WAS INCARCERATED FOR , THE NONSEXUAL

I BELIEVE IT WAS A DRUG CRIME BUT I AM NOT CERTAINOF THAT . DO YOU KN OW?

IT WAS A DRUG CR IME, AND IT WAS A FOUR-YEAR SENTENCE. EYE BELIEVE THAT'S CORRECT.

SO HE IS ABOUT TO GET OUT , AND THE STATE ACTUALLY FINDS THAT THERE IS ANOTHER CRI METHAT H E HAS COMMITTED , ANDTHEY FI LE ON HIM , AND SO THEY, HE RE MAINS I N C USTODY , AND THAT CASE IS DISMISSED . NOW , TE LL ME IN THAT SITUATION, HOW DOES IT WORK.IN OTHER WORDS, DOES THE STATE NOW WA NTS TO APPEAL THAT DISMISSAL . IT IS A DISMISSAL OF A CRIMINAL INFORMATION.

THAT WOULD GET HIM THE BOND AND BAIL AND SUPERSEDEIOUS BOND . IT WOULD DEPEND, I THINK , LARGELY ON THE GROU NDS FOR DISMISSAL .

SO NOTHING IS PE NDING, AND DOES THE DEFENDANT , WHAT A RE THE FACTORS? I GU ESS THAT IS WHAT I AM TRYING TO UNDERSTAND, IS THAT WHEN SOMEONE'S LIBERTY IS AT STAKE WHICH IT IS IN A CRIMINAL CASE AND IT IS IN THIS CASE , THAT I T IS A DIFFERENT IN QUIRY THAT GOES ON THA N THE INQUIRY IN AN AUTOMATIC STAY DISS OLUTION .

YEAH. THERE WOULD BE DIFFERENT , BECAUSE THE GOVERNMENT IS ENTITLED TO THE AUTOMATIC STAY, AND THAT MA KES SENSEIN THE JI MMY R YCE CASE , BECAUSE YOU HAVE A FINDING BY QUALIFIED EX PERTS , THAT IS PRESUMPTIVE LY A FINDING OF PROBABLE CAUSE, IF THE PERSON IS DANGEROUS , AND THAT IS WHY THE DEFAULT HERE , ALMOST HAS TO BE TO THESTATE , BECAUSE OF THE STATE'S INTEREST IN PROTECTING ITS CITIZENS FROM PEOPLE WH O HAVE BEEN FOUND BY EXPERTS WHO EXAMINED THEM , TO BE DANGEROUS PEOPLE.

WELL , BUT, AGAIN , WE WANT TO GO BACK TO THE CRIMINAL CONTEXT, BECAUSE THERE COULD BE M A NY SITUATIONS WHERE PROBABLE CAUSE IS FOUND TO BELIEVE THE PE RSON HAS COMMITTED A CRIME , AND IT IS DISMISSED. OKAY. SO THERE IS NO CHARGE PENDING. WHAT HAPPENS? YOU GO , THE DEFENDANT IS ABOUT TO WALK FREE. THE STATE HAS TO GO IN AND WHAT DO THEY HAVE TO ESTABLISH?

THEY HAVE TO ESTABLISHTHAT HE IS DANGEROUS , LARGELY , I MEAN , THEY WOULDHAVE TO ESTA BLISH WHAT YOU ESTABLISH TO GET BAIL. I DON'T KNOW THAT IT WOULD BE, I MEAN , IT IS MORE SET OUT, AND I AM NOT RE ALLY PREPARED ON THE BAIL STATUTEOR THE RULES ON PRE TRIAL RELEASE AND RULE AND RELEASE PENDING APPEAL , BUT MY SENSE OF IT WOU LD BE THAT , IF THERE WERE NO PROBABLE CAUSE , IN OTHER WORDS, IF THE DETERMINATION WAS THAT PROBABLE CAUSE HAD FA ILED , THEN THERE WOULD BE NO GROUND TO HOLE HOLDING , IRRESPECT TO HOLDING , IRRESPECTIVE OF BAIL AND IRRESPECTIVE OF WHAT HE WAS CHARGED WITH. I F, HO WEVER , IT WAS TO SOME OTHER MATTER SUCH AS A DISPOSITIVE MOTION TO SUPPRESS, I THINK, THEN , IN THAT CASE , THE STATE COULD BE ABLE TO EST ABLISH THAT THE PERSON DID N EED TO B E INCARCERATED , PRIOR TO O R DID NEED TO BE J AILED OR HAD TO POST BO ND, PRIOR TO THE APPEAL BEING FINALIZED .

S O IT IS A REAL , THE POINT IS , I GUE SS, IT IS A REAL POLI CY ISSUE, AND MY PROBLEM WITH I T IS THAT THE POLICY ISSUES THAT LED TO THE ADO PTION OF THE CI VIL R ULE , HAD NOTHING AT ALL , COULDN'T BE FARTHER A WAY FROM THE "JIMMY RYCE" ACT , AND SO

ONE ASSU MES , BUT THAT DOESN'T NECESSAR ILY ME ANTHAT THE RULES SHOULDN'T APPLY.I MEAN, SET TING A S IDE THEFACT THAT , SI NCE THE RULE IS UNAMBIGUOUS , THAT YOU ARE NOT SUPP OSED TO GO INTO THAT, BUT I UNDERSTAND THAT IT HAS ALREADY BEEN GONE INT O.

JUST FROM A PRACT ICALPOINT OF VIEW, I KNOW THATWE HAVE HAD A WHOLE S PATE OF CASES WHERE THIN GS WER EN'T DONE RIGHT AND PEOPLE WERE GETTING FILED , RIGHT ON THEDAY OF RELEASE. TO YOUR KNOW LEDGE CAND IDLY , ARE THOSE IS SUES PRET TY WELL S ET NOW, OR IS THIS ISSUE OF THIS AUTOMATIC STAY , SOMETHING THAT IS LIKELY TO OCCUR OVER AND OVER AGAIN?

I HAVEN'T SEEN IT TOO MUCH. IT HAS COME UP , WHEN JUDGES HAVE DISMISSED CASES A FTER INCARCERATION , AFTER THE INCARCERATIVE P O RTION OF T HESENTENCE IS IN .

I N THOSE OTHER CASES , WE SORT OF ASSUMED THAT YOU COULD BE ABLE TO FILE AGAIN BUT I THINK THE SUMS WAS THAT THE PERSON WOULD BE ABLE TO BE OUT BUT THE ASSUMPTION WAS THAT THE PERSON WOULD BE ABLE TO BE OUT UN TIL THE FINDING . SO OUR ASSUMPTION IN WHICH WE DECIDE SOME OF THESE CASES UNDER REMEDY, IS SOMEHOW UNDERMINED , I F THE PERSON REM AINS , DO THEY REMAIN IN THE JIMMY RYCE FACILITY, IS THAT WHERE THEY GO?

GENERA LLY , YES , UNLESS THEY ARE BROUGHT BACK FOR APPEARANCE AT A HEARING OF SOME KIND , IN WHICH CASE THEY ARE USUALLY K EPT IN A SEPARATE FACILITY IN THE COU NTY JAIL.

THEY ARE ACT UALLY JAILED WHEN THEY COME BACK FOR

GEN ERALLY S O , THAT HAS BEEN M Y EXPERIENCE , ANYWAY. I THINK THE JAILS ACTUALLY HAVE TO HAVE A S E PARATE AREA FOR THESE PEOP LE TO BE KEPT .

FOR THE NONCRIMINAL PEOPLE.

FOR THE NON CRIMINAL PEOPLE. RIG HT.

DOES A ME NTAL FACILITY HAVE SOME AREA WHERE THEY KEEP THEM, SIN CE THEY ARE NOT BEING TREA TED BUT THEY ARE KEPT IN SOME KIND OF MENTAL FACILITY , AREN'T THEY?

KEPT AT THE FLORIDA COMMITMENT C ENTER , JUST LIKE THE PEOPLE WHO HAVE BEEN COMMITTED , BECAUSE WHEN THEY GO DOWN THERE , THEY DO HAVE A RIGHT TO BE PRET REATED , E VEN DURING TRIAL, AND THEY CAN CONSENT TO TREATMENT DOWN THERE AT THAT TIME.THAT IS ONE OF THE THINGS IN JUDGE SOLIA'S SEP ARATE CONCURRENCE/DISSENT IN DUSHARME, THAT HE NOTED THAT THAT ACTUALLY WORKED, THAT THE AUTOMATIC STAY WORKED IN THE "RYCE" ACT RESPONDENT 'S FAVOR TO SOME EX TENT , BECAUSE THEY CAN GET SOME TREATMENT WHILE THEY ARE BEING HE LD.

ON WHAT BA SIS? I MEAN , WHAT , U NDER WHAT AUTHORITY WOULD THEY BE ABLE TO GET TREATMENT?

THE AUTHORITY VESTED INTHE DEPARTMENT OF CHILDREN AND FAMILIES TO TREATANYBODY WHO IS IN THE FLORIDA CIVIL COMMITMENT CENTER.

WITH OUT ANY KIND OF COMMITMENT PAPERS.

WITHOUT ANY KIND OF COMMITMENT PAPERS.IT IS OF FERED TO THEM . THAT IS MY UNDERSTANDING ANY HOW. I DON'T KNOW WHETHER THEY HAVE THE STATUTORY AUTHORITYTO DO THAT. THEY HAVE , MY UNDERSTANDINGIS THAT THEY HAVE BEEN OFFERING IT.

LE T ME ASK YOU JUST ONE OTHER QUESTION HE RE, ABOUTTHIS PROBABLE CAUSE. YOU KNOW , IF YOU HAD A HEARING ON THE PROBABLE CAUSE ISSUE , AND UNDER SOME CIRCUMSTANCES , Y OU CAN HAVE A HEARING ON THE PROBABLE CAUSE ISSUE , CORRECT?

YES.

AND IF THE TR IAL JUDGE DETERMINES THAT THERE IS NO PROBABLE CAUSE, DOES THE STATE HAVE A RIGHT TO APPEAL THAT DETERMINATION?

I THINK S O , YES.

SO UNDER THOSE CIRCUMSTANCES, WOULD THE AUTOMATIC STAY PROVISION APPLY?

I WOULD ARG UE THAT IT DID O N THIS GROUND , THAT IT WOULD DEPEND TO SOME EXTENT ON WHY THE STATE FAILED, I MEAN, IF THE STATE'S PETITION FAILED , AND THERE WAS NO FINDING OF PROBABLE CAUSE MADE IN THE EXP ARTE PROBABLE CAUSE, THAT SOUNDS LIKE AN EXTRAORDINARY THING , AND THE ONLY THING , EXTRAORDINARY CIRCUMSTANCE , AND I CAN ASSUME THAT IT WOULDN'T HA PPEN, WOULD B E BECAUSE THE I'S WEREN'T DOTTED AND THE T'S WEREN'T CROSSED. IN OTHER WORDS , THE STATE IS GOING T O FILE THE STATE ISN'T GOING TO FILE A PETITION AGAINST SOME ONE, UNLESS THE EXPERTS SAY THIS PERSON IS LIKELY TO REOFFEND.

DO ALL THE EXPERTS SAY THAT ? ASSUMING YOU HAVE A SP LIT OF OPINION , THE TRIAL JUDGE SAYS, NO , I AM NOT GO ING TO FIND PROBABLE CAUSE.

I WOULD ARGU E THAT THE AUTOMATIC STAY , STILL, SHOULD APPLY , BECAUSE THERE IS SOME OPINION. THERE IS SOME COMPETENT EVIDENCE. OTHER WISE WE WON'T GET TO A PETITION, IF ALL , IF EVERYBODY ON THE MULTIDISCIPLINARY TEAM SAYS THIS INDIVI DUAL DOES NOT MEET THE CRITERIA.

DO YOU AGREE THAT THE DEFENDANT WILL HAVE A COMPELLING CASE TO DISSOLVE THE STAY?

HE WOULD HAVE A BETTER CASE THAN ANOTHER "RYCE" ACT RESPONDENT MIGHT HAVE , BUT MY ARGUMENT , T ODAY , IS THAT THE AUTOMATIC STAY BEST ADVANCES THE AIMS OF THE "JIMMY RYCE" ACT , AND THAT IS TO PRE VENT SEXUALLY VIOLENT PREDATORS FROM BEING RELEASED FROM INCARCERATION, DIRECTLY INTO THE GENERAL POPULATION, UNTIL THERE IS A FINDING AS TO WHET HER THEY ARE DANGER OUS OR NOT , AND THAT FINDING I S MADE ULTIMATELY, BY A JURY. NOW, IF THE , LET'S T AKE ANOTHER EX AMPLE , JUS TICE QUINCE. IF THE , THERE IS A N ADVERSARIAL PROBABLE CAUSEHEARING , AND THE JUDGE FINDS ABSENCE OF PRO BABLE CAUSE, THAT COULD COME UP IN A COUPLE OF DI FFERENT WA YS. THE STATE COULD NOT GET ITS WITNESSES THERE, I N WHICH CASE THE DEFENDANT'S CASE IS NOT AS COMPELLING THAN IT IS IF THE TRIAL COURT LISTENS TO THE EVIDENCE ANALYSTENS TO SOME CONTRARY EVIDENCEAND DISAGREES. THE STATE WOULD HAVE A RIGHT TO SE EK A STAY IN THAT CASE , AND I THINK THE STATE COULD ARGUE THAT THIS PERSON , THERE IS SOME EVIDENCE, STILL, THAT THIS PERSON IS DANGEROUS , AND THAT SHOULD BE THE DEFAULT .

SO THIS DETENTION OF THE DEFENDANT, COULD POTENTIALLY GO ON , WELL , FOR AS LONG AS THE APPEAL PROCESS.

THAT'S CORRECT.

THE DIS TRICT COURT .

POSSIBLY , THAT'S CORRECT. AND MANY OF THEM HAVE GONEON FOR YE AR S AND YEARS, AS , BEFORE TRIAL, AS THE V ARIOUS CONSTITUTIONAL ISSUES HAVE GOTTEN SH AKEN OUT BY THIS COURT AND OTHERS .

AND IS THERE , I GU ESS , ISTHERE ANY , IF YOU ARE IN J AIL FOR A LONG TIME PRIOR TO TRIAL , YOU CAN GET SOME KIND OF C R EDIT FOR TIME SERVED, BUT UNDER THESE CIRCUMSTANCES , THE DEFENDANTS WOULDN'T EVEN GET ANY CRE DIT FOR THE TIME THEY HAVE AL READY SP ENT IN THE FACILITY, WOULD THEY?

NO, BECAUSE GETTING OUT DOESN'T DEPEND ON HOW LONG YOU HAVE BEEN IN. IT DEPE NDS ON YOUR PROGRESS AND HOW MU CH BETT ER YOU HAVE GOTTEN, AND I PRESUME THAT THAT IS ONE OF THE R AGS ALWAYS FOR RATIONALES FOR OFFERING PEOP LE WHO ARE PRETRIAL, THE OPTION OF CONSENTING T O THE TREATMENTPROGRAM , THAT IT WOULD BE WITHIN THEIR PO WER , BUT THAT WOULD ENABLE THEM T O POTENTIALLY FORSHORTEN , THE AMOUNT OF TIME WOULDN'T FORSHORTEN BUT IT WOULD PREVENT THEM FROM WAITINGTHREE OR FOUR YEAR S AND THEN ONLY CONSENTING TO TREATMENTAFTER THEY HAVE BEEN COMMITTED OFFICIALLY. OUR ARGUMENT IS THAT THE PURPOSE OF THE RULE IS REALLY IMMA TERIAL . THE PURPOSE OF ANY STAY IS TO KEEP THE PARTIES AT STATUS QOCHLT OUR POSITION IS THAT STATUS Q UO IS BEST SERVED HERE : IT BEST S E RVES THE INTERESTS OF ALL OF THE CITIZENS OF THE STATE, IN LIGHT OF A FINDING THAT THIS PERSON IS DANG EROUS . UNDER THESE FACTS , WE HAVE DEMONSTRATED THE LIKELIHOOD OF SUCCESS ON THE MERITS. THE UNDERLYING APPEAL IN HALE, OUR POSITION IS, DISPODZ OF THIS CASE . THE DISPOSES OF THIS CASE. THE CONSTITU TIONAL ISSUETHAT WAS MENTIONED IN PLEADINGS , WAS NOT PART OF THE TRIAL COURT'S DETERMINATION OR THE DISTRICT COURT OF APPEALS DETERMINATION. THE PROBAB ILITY O F IRREPARABLE HARM, THAT FA LLS STRONGLY ON THE STATE, R ATHER THAN ON THE PETITIONER IN THIS CASE , THE"RYCE" ACT RESPONDENT, AND WE AS K THAT YOU AFFIRM THE HOLDING OF THE FI RST DISTRICT COURT OF APPEAL.

CHIEF JUSTICE: THANK YOUVERY MU CH. REBUTTAL. THREE AND-A-HALF MINUTES.

WITH RES PECT TO THE SPATE OF J IMMY R YC E LITIGATION TODAY , M OST OF THE ERRORS R ULE INURE T O THE STATE WHEN THE MOTION TO DISMISS IS FILED, FOR EXAMPLE FAI LURE TO TAKE RESPONDENT TO TRIAL WITHIN 30 DAYS , FAIL URE TO HAVE A SWORN AFFIDAVIT , FAILURE TO FILE THE PETITION WHILE THE PERSON IS STILL IN LAWFUL CUSTODY , SO IN THAT RESPECT , I DON'T THINK WEWOULD BE PRESERVING THESTATUS QUO BY DEPRIVING SOMEBODY OF THEIR LIBERTY AND DUE PROCESS . WITH RESP ECT TO JUSTICE PARIENTE'S QUESTION, I BELIEVE THE CRIMINAL CONTEXT, I BE LIEVE THE CASE FROM THIS COURT , FROM, I THINK, BACK IN THE '70s OR MA YBE BE FORE THAT WAS YEOMAN'S . I AM NOT SURE IF I AM PRONOUNCING IT CORRECTLY, WITH RESPECT TO SUPERSEDE IOUSBONDS , AND ONE OF THE MAIN ISSUES WHEN A SUPERSEDE IOUS BOND IS ASKED THAT COMES UP , IS AN INDIVIDUAL'S PRIOR RECORD, AND I THINK A LOT OF THE OTHER THING THAT IS ARE DECIDED IS WHAT WOULD BE TRADITIONALLY DONE IN BOND HEARINGS, T IES T O COMMUNITY, RISK OF F LIGHT , ET CETERA.

DOES DANGEROUSNESS COME INTO IT?

I DON'T BEL IEVE SO.

THERE WOULD VIRTUALLY BE NO IN STANCE WHERE THE CHARGES HAD BEEN DISMISSED AGAINST A CRIM INAL DEFENDANT , WHERE THE STATE WOULD BE ENTITLEED TO STILL HOLD THE DEFENDANT.

CORRECT .

A CRIM E CASE.

CORRECT. IN MOST CASES , SUPERSEDEIOUS BOND IS

AND YOUR OPPONENT , ACTUALLY, CANDIDLY CON CEDED THAT DURING QUESTIONING.

BASED ON THE STATE O F WHAT TYPES OF MOTION WO OS BE GRANTED THESE DAYS, BASED ON THIS COURT 'S DECISIONS , I THINK THE BURDEN SHOULD BE ON THE STATE TO MOVE IN THE TRIAL COURT , AS TO WHY THERE SHOULD BE A STAY , AND

DO YOU, SEE , THERE, THEN , I F IT WAS ON THE STATE , THEN , WOULD THE CRITERIA , THOUGH, BE DI FFERENT THAN A CRIMINAL CASE? WOULD IT BE LIKELI HOOD O F SUCCESS AND HARM TO THE COMMUNITY, SINCE THAT IS WHAT YOU ARE LOOKING AT WITH THE JI MMY RYCE DEFENDAN T?

I WOULD SAY YES, THAT THE TRIAL COURT JUDG ES

IT WOULD BE A DIF FERENT INQUIRY THAN IN THE CRIMINAL CONTEXT?

CO RRECT , G IVEN THE FACT THAT THESE CASES HAVE BEEN DEEMED TO BE CIVI L, EVEN THOUGH THEY ARE PROBABLY QUASI-CRIMINAL IN N ATURE , BUT THE TRIAL COURT SHOULD LOOK AT WHAT A TRIAL COURT WOULD LOOK IN AN Y CIVIL CASE. UNDER 9.310 .A , THEY CAN DECIDE WHETHER OR NOT TO , THE RESPONDENT IN THESE CASES CAN POS T A BOND OR OTHER CONDITIONS OR BOTH. THEY WOULDN'T NECESSARILY BE YOU ARE OUT. THE RULE S AS W RITTEN RIGHT NOW UNDER 9.310, ALLOWS THE TRIAL COURT TO DO THOS E TWO THINGS.

DO THEY HAVE THEAUTHORITY TO IM POSE ONE OF THOSE MONITORING DEVICES?

I DON'T SEE WHY THEY, WHY THAT COULD NOT BE A CONDITION , A LAWFUL CONDITION IMPOSED BY THETRIAL COURT. I T IS NOT UNCOMMON, EVEN , IMEAN , IN CRIMINAL CASES.

WOULD THEY HAVE THEAUTHORITY TO AUTHORIZE THAT,DURING THAT TIME THAT THEY RECEIVE AFFIRMATIVELY RECEIVE TREATMENT ?

I DON'T BELIEVE , THAT WOULD RAISE A FIFTH AMENDMENT PROBLEM, I BELIEVE, BEC AUSE PART OF TREATMENTWOULD BE TO AC CEPT RESPONSIBILITY, AND IF YOUMOVE TO DISMISS PRIOR TO GOING TO TRIAL , YOU MAY BE INCRIMINATING YOURSELF.THERE IS N O PSYCHOTHERAPIST PATIENT PRIVILEGE, SO IT IS KIND OF AN OTHER MURKY AREA. AN I THINK WE ARE G OING TO BE DECIDING THAT ISSUE NEXT MONTH OR SO.

IN MY REMAINING MO MENTS , I WOULD LIKE TO DO I HAVE ANY REMAINING MOMENTS?

CHIEF JUSTICE: NO.

IN THAT EVENT , I WOULD REQUEST THAT THIS COURT REVERSE THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL AND HOLD THAT THE AUTOMATIC STAY DOES NOT APPLY T O JIMMY RYCE PROCEEDINGS , AND I RELY ON MY BRIEF, W ITH RESPECT TO THE OTHER CERTIFIED QUESTION IN THIS CASE , THAT HAD BEEN DECIDED BY HALE , THAT THIS COURT SHOULD RE CEDE FROM HALE, THAT ON THE BASIS OF SUBSTANTIVE DUE PROCESS, THAT THE MOST RECENT T ERM O F PRISON INCARCERATION HAS TO BE FOR A SEXUALLY VI OLENT OFFENSE.

CH IEF JUSTICE: THANK YOU VERY MUCH. THE COURT WILL TAKE ITSMORNING RECESS OF 15 MINUTES.

MARSHAL: PLEASE RISE.