THE COURT W IL L CAL L T HE L AS T R ULES CASE FOR TOD AY I N R E COLON AMENDMENTS TO THE FLORIDA RULE OF CRIMINAL PROCEDURE .

IS EVERYBODY GOING TO B E ON ONE SIDE?

WE WILL S PLIT UP.

AGAIN I KNOW WE HAV E 3 0 MINUTES A LLOCATED. I KNOW THIS COURT C AN T AK E UP ANY AMOUNT OF TIM E A LLOCATED, B UT I T L OO BL INGS L IKE THI S - - LOO KS LIKE T HI S IS ALL STRAIGHTFORWARD. SO LET'S HAVE YOU INTRODUCE YOURSELF AND IF YOU D ON'T WANT TO USE ALL OF T HE T IME ALL OCATED WE WOULD BE DELIGHTED.

MAY IT PLEASE THE COURT, YOUR HONOR , ETH AN AND RE W WAY ON BEHALF OF THE F LO RIDA BARS C RI MI NAL P RO CEDU RE R ULES COMMITTEE. I'M HERE O N BEH AL F O F T HE CHAIR, WE ARE HER E O N THE OUT OF CYCLE REPOR T C ONCERNING RULE 3.1 72 , AND ON RESPONSE TO THE C OU RT'S R EFERENCES I N W AT RO US AND STAPLETON AND THEN, OF COURSE, THE HARRI S O PI NION HAVING COME OUT , T HI S WAS A N OUT OF C YCLE R EP OR T SUBMITT ED NOVEMBER 18 OF 2004. IT WAS A 2 5- 2 V OT E O F T HE COMMITTEE AND AROVE D B Y T HE BOARD OF G OV ER NO RS .

I UNDERSTAND THAT YOU AGREE OR YOU A RE A UTHO RI ZE D BY THE COMMITTEE TO AGREE T O THE CHANGE THAT WAS SUGGESTED OR W HA T IS T HAT?

BY THE C RIMI NA L DEFENSE LAWYERS .

THERE IS A LIT TLE B IT O F D EBATE AT WHAT I A M A LL OWED TO DO AND WHAT I AM NOT ALLOWED TO DO.

AUTHORIZE. JUST SAY AUTHORI ZE .

I W OU LD B E SUR PRISED I F THERE WEREN'T.

WHAT WE ARE TALKING ABOUT IS ADDING L ANGU AG E W HI CH WOULD S AY F OR A SEX UA LL Y MOTIVATED OFFENSE.

YES, YOUR H ON OR.

AND TAK IN G OUT THE - - O F A S EX UA L LY VIO LENT O FF EN SE AND ADDING S UCH A N OFFEN SE.

ACTUALLY , YOUR H ONOR , I SAW THERE TO BE TWO I SSUES. T HE FIRST BEING THE F LORIDA ASSOCIATION O F CRIMINAL DEFENSES L AW YERS POSIT IO N THAT THIS P RO PO SE D RUL E , THIS PARAGRAPH 9, A LI ED T O ALL PLEA C OL LOQU YS A ND T HE N THERE W AS REF ER ENCE IN THE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS A RG UMENT A S WELL AS T HAT OF THE PUB LI C DEFENDER OF T HE SECON D J UDICIAL CIR CUIT T O A DD IN THE LANGUAGE SEXUALLY MOTIVATED , AND I B EL IEVE WHERE WE ARE LOO KING A T I S IT WOULD BE A N E SSENTI AL ADDITION OF 14 MOR E WOR DS T O THE PROPOSED RULE. JUDGE BAITMAN AND T HE CRIMINAL RULES COMMITTEE DIDNOT HAVE TIME TO H AVE T HE COMMITTEE VOTE O N T HA T PRO POSED LANGUAGE SO I CANNOT AS A REP RESENT AT IVE OF THE COMMITTEE SAY THAT'S WHAT THE COMMITTEE WOULD DO BUT THEIR ARGUMENT IS W ELL TAKEN I N THAT THE L AN GUAG E P ROPOSED BY MR. F RIEDMA N OF THE PUBLIC DEFENDER'S OFFIC E DOES TRACK THE STATU TE , T HE JIMMY RYC E STA TU TE, AND T HE A RGUMENT M AD E B Y T HE F LO RIDA ASS OCIATION OF CRIMINAL DEFENSE LAWYERS WITH REGARD TO AN OFFENSE THAT WAS SEXUALLY MOTIVATED IS WELL TAKEN.

WHAT DOES M R. F RI ED MA N P ROPOSE THAT THE FLORI DA ASSOCIATION OF CRIMINAL DEFENSE LAW YE RS D ENIE D? WHAT WAS THE LANGUAGE?

I BEL IEVE THA T MR. FRIEDMAN'S PROPOSAL MOR E THO ROUGHLY TRACKED THE STATUTE AND IN HIS P ROPO SA L IN PARAGRAPH 7 HIS I S M UCH MORE DETAILED AND I BEL IEVE THAT HE TAKES, A ND I UNDERSTAND HE T AKES THAT DETAIL FROM THE STA TUTE. JUDGE BAT E MA N' S P OS IT IO N I N HIS RESPONSE WAS T HA T T HAT WORDI NG I S U NW EI LD Y AND T OO LONG AND J UD GE BAT E MA N REF ERS IN A F OOTN OT E T O A COLLOQUY THAT HE CONDU CTS IN THE SEC OND JUDICIAL KIR SUT AND T O HIS P LEA FOR M , N OT HIS PLEA FORM B UT THE P LE A FORM THAT HE AND SEVERAL MEMBERS OF THE BAR CAME U P WITH AND I S U SE D I N HIS COURT ROOM WHICH IS A L IT TL E MORE CONCISE AND A LITTLE BIT EASIER T O U NDERSTAND , THE DIFFE RENCE IS HOW MANY TIMES DO YOU REPEAT T HE PHRASE OR SEXUALLY MOT IV AT ED OR SEX UA LLY M OTIVAT ED O R D O YOU JUST SAY I T O NC E?

ISN'T IT REALLY THAT T HE ISSUE, I GUESS, I S W HE TH ER IT IS G IVEN SEL ECTI VE LY O R GIVEN G LOBE ALLEY, LIKE I N LOOKING AT THE O NE W HE RE Y OU TELL T HE PER SO N THA T T HE Y ARE NOT A U.S. CIT IZEN AND MAY BE SUB JE CT T O DEPORTATION, T HAT' S G IVEN , T HAT'S TOLD TO E VERYBO DY B UT THAT I S DECISIO N W HE TH ER ASKING THE PERSON IF T HE Y ARE A U .S . CIT IZEN O R N OT , BUT THE DECISION WAS MADE THAT INSTEAD OF J UST SAYING , LISTEN, AND I F YOU A RE THI S , T HEN YOU ARE S UBJECT T O T HA T . TO A SK E VERYBODY AS O OS ED TO THE JUDGE HAV IN G T O DETERMINE WHETHER C OL LOQU Y SHOULD BE GIVEN I N A G IVEN INSTANCE.

YOUR HONOR, IT SHOULD BE GIVEN TO EVERYONE. NOW, A S A F OR ME R TRI AL J UD GE WHO HAD TO DO T HIS AL L O F THE TIM E , T HAT' S WHE RE I HAVE THE BIGGEST Q UEST IO N AND CONCERN. T WO-FOLD. ONE, IT I S B EC AU SE M AKIN G - - THERE ARE L IKE 15 OF T HE M NOW THAT ARE MANDATORY AND IT GETS LONGER AND LON GE R AND LONGER TO GO T HROUGH T HE P LEA COLLOQUY. SECOND IT IS A CONCE RN A BO UT TOO MUCH H UMOR I N T HE COURTROOM WHEN YOU HAV E SOMEBODY CHARGED WITH STEALING A N A UT OMOBIL E O R STEALING I N P ER RY T HA T YOU'VE GOT TO A SK T HE M

Y OU MEA N A S M R. P AR KE R GOES.

HOW ABOUT TALKING A BOUT PENSACOLA.

S OMEB OD Y STE AL S A PIG O R A CAR ARE YOU GOING TO H AVE TO ASK THE M W AS I T I S S EX UA L OFFENSE O R S EXUA LL Y MOTIVATED OFFENSE? I CAN SEE Q UE RI ES A ND A LOT OF HUMOR IN T HE C OURT ROOM BUT THE R EALITY OF IT I S T O REQUIRE A JUDGE WHO IS D OI NG 150 PLE AS , A CCEP TA NC E IN A DAY, AND GOING THROU GH THI S C OLLOQUY T O D O S OM ET HI NG THAT'S IRREL EVANT T O PROBABLY 9 5% O F THE CRI MES THAT YOU ARE TAK ING PLE AS T O , SEEMS I NS TE AD O F P LACI NG T HE BURDEN ON THE STATE ATT ORNE Y OR THE PUBLI C D EF ENDER WHO KNOWS CRI ME M OR E I NTIM ATEL Y THAT THAT MIGHT B E SOM ET HING AT ISSUE IN THI S C AS E T O PLACE THE N OT IC E , PUT I T I N THE PLEA AGREEMENT OR PLACE THE JUDGE ON N OTIC E.

YOUR HONOR , I N THE P RACTICAL EFFECT, IT DOES NOT TAKE A LOT OF TIME AT ALL, A ND GIV EN WHAT HAP PENE D IN THE PLEA COL LO QU Y I T COMES RIGHT AFTER THE DETOR E PATION D EP ORTA TION , WHICH FOR KPFERP I F Y OU A RE M AY BE IN P ER RY O R S OMEW HERE ELS E THEY ARE GOING T O S TART SNICKERING AT THE DEPORTATION A SPECT , WE ARE GOING TO SEND YOU TO L EO N C OUNTY.

OR P EN SACO LA W HE N YOU GET THE GUY W ITH THE H AT CH ET AND YOU ASK HIM WHETHER HE IS A U.S. CITIZEN AND I T BECOMES HUMOROUS.

BUT R ESPE CTFULLY, YOUR HONOR, THE PROBLEM YOU H AVE IS IF THE PERSON I S TAKIN G A PLEA THAT'S GOING T O RESULT IN THE DEPARTMENT OF CORRECTIONS S ENTENCE FOR STEALING THE CAR THA T HAENED TO HAVE THE PIG IN IT AND THEY HAV E T HI S PRIOR PLED DOWN S EXUA L B AT TE RY WHICH IS NOW A FELON Y BATTERY ON THE BACK O F SOMEBODY'S SCORE SHEETTHAT'S THE FEAR THAT YOU ARE GOING TO HAVE. YOU PLED THEM OUT F OR STEALING THE CAR WITH THE PIG, THEY HIT D OC AND T HE N ALL OF THE SUD DE N THE MULTIPL E DISCIPLIN ARY T EAM TRACKS UP ON A 1 984 CONVICTION THAT IS SEXUALLY MOTIVATED SO I THINK IT HAS TO BE S AID TO E VE RYON E BECAUSE GENERALLY THE TYPES OF INDIVID UALS W HO F AL L WITHIN THE JIMMY RYCE PARAMETERS ARE NOT THE WORLD 'S BEST H ISTO RI AN S. IT IS VERY DIF FICULT F OR DEFENSE COUNSEL IN REVIEWI NG PRIOR RECORD , P ARTI CULA RL Y CRIMINAL PUNISHMENT C OD E SCORE SHEET TO SEE THIS 1 98 4 FELONY BATTERY I S R EALLY A CAPITAL SEXUAL BATTERY T HAT GOT P LED DOWN SO I T HI NK EVERYONE NEEDS TO BE MADE AWARE OF IT BECAUSE THERE IS THAT POTENTIAL T HA T I T IS THE PRIOR RECORD T HA T' S GOING TO GET YOU, NOT T HE SPECIFIC OFFENSE WHI CH Y OU MAY BE TAKING A D OC S EN SE T O. I SEE I A M I N R EB UTTA L T IME. I WOULD T AKE MOST OF M Y T IME TO WRAP UP WHAT I WAS GOI NG TO BE SAYING , S O I BEL IE VE MR. M ILLER WOULD BE UP NEXT.

THANK YOU VERY M UC H .

MAY IT PLEASE THE COURT , I'M JIM MILLER FRO M JACKSONVILLE ON BEHALF OF THE FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS. J USTICE BELL , TO C ARRY UP WHERE YOU JUST STOED, SIR, I UNDERSTAND YOUR CONCERN, BUT THE REA L P RO BL EM H ER E IS NOT WITH THE I NS TANT O FF ENSE BUT THE FACT T HE Y CAN G O BACK TO THE PRIOR OFFEN SE AND WE KNOW THE PRA CTICAL REALITIES ABOUT THE PRIOR OFFENSES. THE JUDGE WHO ACT UALLY TAKES THE PLEA MAY N OT EVE N KNO W ABOUT THE PRIOR RECOR D THAT MUCH, AND I AGREE THAT THE PARTIES KNOW ABOUT IT , TOO, BUT NOT ALWAYS. AND SO THE PROBL EM IS EXACTLY THAT, WHERE YOU HAVE AN OFFENSE THA T W AS P LE D D OWN FROM L IK E A CAP ITAL SEXUAL BATTERY TO A SIM PL E BATTERY BECAUSE UNFORTUNATE LY JIMMY RYCE STATUTE IS S O B RO AD I T S AY S SEXUALLY MOTIV ATED O FFENSE .

ISN'T THI S PROTE CTIO N THEN FOR REALLY NOT THE JUDGE BUT THE DEFENSE ATTORNEY, THE PRO SE CUTO R , BECAUSE IT KIND OF SAYS IF YOU HAVE B EE N T HE N Y OU M AY BE SUBJECT TO I T , S O I T IS REALLY THEN THE D EF EN DANT CAN'T SAY L ATER IT W ASN'T A KNOWING PLEA?

O UR M OT IVAT IO N I S EXA CT LY THIS, YOUR HONOR. W HEN THE DECISION C AME T O START TELLING THE D EFENDANTS ABOUT DEPORTATION , M Y ORG ANIZATION NOTICED THA T AFTER THERE STARTED TO B E A COLLOQUY ON THAT AND W E DON'T KNOW THE EXACT NUM BE RS SO THIS IS S OM EWHA T ANECDOTAL B UT - -

IS I T I N A COL LOQU Y - - COLLOQUY OR A P LE A AGREEMENT?

IT IS I N BOT H. SO WHAT HAENS I S A S A PRACTICAL MATTER, YOU K NOW , EVEN LOOK , NOT HING IS G OI NG TO STOP DEFENDANTS FROM MAKING A CLAIM, ESPEC IA LL Y P RO S E C LA IMS , HOWEV ER , I F IT IS IN T HE C OLLOQU Y AND THE PLEA AGREEMENT , T HE CIRCUIT COURT CAN DENY T HE SE WITHOUT A HEARING AND THAT SAVES A LOT OF JUDICIAL

FROM Y OUR E XPERIENCE , SERIOUSLY, IS IT T HE C OLLOQUY O R T HE DEF ENDA NT JUST SAYING YES, YES , Y ES T O THE JUDGE A FTER HEARING THE JUDGE GOING THROUGH THE QUESTION FOR SIX HOURS OR IS IT THE A TTORNEY S IT TING DOW N WITH THE PLEA AGREEME NT GOING THROUGH THE ITEMS , GETTING HIM TO I NI TI AL THE PAGES AND HAVING T HA T WRITTEN PROOF THAT THEY HAVE GONE OVER IT AND T HE N THE JUDGE A SKING THE DEFEN DANT , HAVE YOU READ THE P LEA AGREEMENT, DID YOU DISCUSS ALL OF THE TERMS WITH YOUR CLIENT, DO Y OU UND ERSTAND EACH AND EVERY TERM OF T HE PLEA AGREEMENT? YES, YES, YES. IS T HAT R EA LL Y WHERE Y OU REALLY PROTECT THE DEFENDANT OR IS I T T HE JUD GE G OING THROUGH THIS MON OTON OU S SOR T OF INQUIRY F RO M P RA CT ICAL E XPERIENCE?

I CAN'T DIS AG RE E T HA T SOMETIMES IT IS MON OTON OU S, HOWEVER , YOU C AN NOT L EG ALLY SEPARATE THESE TWO. THE COURT HAS THE U LTIMAT E RESPONSIBILITY TO ASK THE QUESTIONS OF THE DEFENDANTAND MAKE SURE THAT THE P LE A WAS FREELY AND V OL UN TA RI LY ENTERED. YOU CAN'T SEPARATE THE TWO. I UNDERSTAND WHAT YOU ARE SAYING, BECAUSE AS A PRACTICAL MATTER THE PLE A AGR EEMENT, E SPEC IA LL Y I F THEY ARE SPECIFIC ENOUGH , IS REALLY WHERE THE MEAT OF THE MATTER IS. THE JUDGE USUALLY JUST A SK S HAVE YOU GONE OVER THIS W ITH YOUR ATTORNEY, HAVE YOU DISCUSSED THIS AND THAT. HOWEVER, YOU C AN'T S EP ARATE THE TWO. BECAUSE, YOU KNOW , I PERSONALLY LITIGATED CASES WHERE THOUGH THERE WAS A GREAT PLEA AGREEMENT T HE JUDGE DIDN'T TIE IT IN WIT H THE QUESTIONS FROM T HE COLLOQUY AND SO I HAVE BEEN ABLE TO GET A P LE A S ET ASI DE SO THE P RACTICAL

IF IT IS I N THE P LEA A GREEMENT DO YOU NEED IT IN THE C OLLOQUY?

I THINK AT T HE L EAST THE WAY I READ THE C ASE L AW I S YOU HAVE TO AT LEAST A SK D ID YOU GO O VER T HESE M AT TE RS WITH YOUR ATTORNEY BUT THERE IS CASE LAW T HAT S AYS T HAT THE PLEA A GREEMENT CANNOT BE A D IRECT S UBSTITUTE FOR W HA T THE COURT'S DUTY IS I N TERMS OF THE PLEA D PREMENT.

AND THAT'S MY P ROBLEM WITH THE RULE. MAKING IT M AN DATO RY I N T HE RULE IF THE JUDGE DOE SN'T DO IT EVEN IF IT I S I N T HE P LE A AGREEMENT YOU HAV E A C ASE O F DEFICIENCY BECAUSE THE JUDGE DIDN'T ASK ABOUT IT.

I DON'T THINK THERE IS ANY WAY FOR US TO GET ARO UND THAT.

SO WHAT I S Y OU R - - WHA T ARE YOU AUTHORIZE D TO SUGGEST O N BEHALF O F Y OU R GROUP?

YOU ARE RIG HT O N ITS FAC E THE S EXUALLY MOT IV AT ED THI NG MAY NOT ALY T O A LL C ASES BUT I THINK THE O NLY W AY TO MAKE THIS S TICK AND TO S AV E EVENTUAL TIME A ND RESOU RCES MAKE THEM DO IT IN EVERY C ASE.

ALL FELONY CASES?

RIGHT. BECAUSE T HE INS TA NT O FF ENSE MAY NOT BE S EX UAL B UT T HE PRIOR ONE M AY BE.

DID YOU UNDERSTAND THAT THE COM MITTEE DIDN'T PRO PO SE TO HAVE I T IN EVE RY CAS E?

Y ES.

SO I 'M H EA RI NG ABO UT W AY TODAY S AYING THE INT EN T W AS TO HAVE IT I N E VERY CASE.

I'M SORRY. I DIDN'T KNOW ABOUT THEIR INTENT. ALL I KNEW WAS I F IL ED M Y RESPONSES AND I GOT A LETTER FROM JUD GE B AT E MA N T ELLI NG ME I N H IS R ES PONS E T HA T T HE Y ACCEPTED OUR COMMENTS.

WELL, THAT'S THE S AME STATEMENT.LET ME ASK YOU W HE THER O R NOT THERE AEARED TO B E SOME DIFFERENCE, AND I'LL HAVE TO ASK YOUR COLLEAGUE ABOUT THIS, TOO, BET WEEN THE PUBLIC DEFENDERS A ND T HE CRIMINAL DEFENSE LAWYE RS SUGGESTED REVISION TO THE LANGUAGE. HAVE YOU ALL TALKED A BOUT THAT, AND A RE T HERE REA LL Y ANY MEANI NG FU L D IFFE RE NC ES ? FOR INSTANCE I F W E A CCEP T YOUR SUGGESTION A BO UT T HE LANGUAGE, WILL THERE STILL BE AN I SSUE WIT H T HE PUB LI C DEFENDER'S SUGGESTION? HAVE YOU ALL T RIED TO W OR K THAT OUT?

WE H AVE TALKED ABOUT IT. I DON'T DISAGREE WITH ANYTHING THEY SAY TO B E COMPLETELY HONEST WITH THE COURT. I M ADE A D ECISIO N O N B EHAL F O F M Y O RG AN IZATION W HI CH H AS BOTH PUBLIC DEFENDERS AND PRIVATE ATTORNEYS TO KEE P IT A LITTLE BIT SHO RTER BECAUSE I WASN' T SUR E , YOU K NO W , I THI NK WE

THANK YOU VERY MUCH.

I REA D J US TI CE B EL L' S MIND ABOUT MAKING I T TOO LONG AND COMPLIC AT ED.

THE P RIVATE L AW YE RS ARE BEING PAID ON THE HOUR SO THEY WANT TO G ET O UT O F THERE.

I DON'T GET P AID BY THE HOUR, YOUR HONOR.

THAT'S RIGHT. I REMEMBER THE FILES OF T HE CRIMINAL DEFENSE ATTORNEYS.

I D ON 'T D IS AGRE E WITH THEM, YOUR HONOR . YOU ASKED A VER Y I NTER ESTING QUESTION ABOUT WHETHER IT WOULD REALLY MAKE ANY DIFFERENCE IN TERMS OF T HE LEGALITY OF THE PLEA. YOU KNOW , THI S I S A LWAY S SHADES OF GRAY. OBVIOUSLY WE WOULD HAV E I T NAILED DOWN E VEN M OR E I F W E DID WHAT THE PUBLI C DEFENDE R'S OFFICE DID. YOU ACCEPT OUR PROPER P OL ES AL AND T HE RE MAY BE Q UESTIONS IF I H ONESTL Y ANSWER YOUR QUESTION SO THAT'S ABOUT ALL I CAN SAY ABOUT THAT. I HON ES TLY B ELIE VE THA T W HA T I P ROPO SE D WAS BET TE R THAN THE ORIGINAL RULE , AND PERHAPS THE PUBLIC D EFENDER'S SUGGESTION IS EVEN A BETTER S OLUTION AND IF YOU DON'T H AV E A NY O TH ER QUESTIONS THANK YOU VERYMUCH.

THANK YOU VERY M UCH FORBEING HERE. MR. F RIEDMAN?

PLEASE THE C OURT , R OBER T FRIEDMAN ON BEHALF OF THE PUBLIC DEFENDER'S OFFICE , S ECOND JUD ICIAL C IR CUIT. I THINK THE KEY T O T HI S I S WHEN A TRIAL COURT DETER MINES V OL UN TARI NE SS O F A PLEA , THE TRI AL J UDGE N EEDS TO D ETERMI NE WHETHER OR NOT THE DEFENDANT UNDERSTANDS THE CON SEQUEN CES OF THE P LEA. W HEN I FIRST S AW T HE PROPOSED R UL E , W HICH I S NOT DOES NOT I NCLUDE THE SEXUALLY MOTIVATED LANGUAGE THAT WAS PUBLISHED IN T HE FLORIDA BAR NEWS, I D ECID ED TO FILE A COMMENT BECAUSE I DID HAVE A PENDING T RI AL CASE WHICH I H AV E A TT AC HE D AS A ENDI X W HE RE I T CLE ARLY CAME UP TO SOMEBODY W HO W AS C HARGED BY I NF OR MATI ON WITH SEXUAL BATTERY AND THEN ENTERED INTO A PLEA TO AN A GGRAVATED BATTERY SUBSEQUENTLY THE PETITION WAS FILED TO HAVE T HE P ERSO N COMMITTED UNDER THE JIMMY RYCE ACT.

SO ACT UALLY IF I T IS OMITTED IT COULD A CT UALL Y MISLEAD, IT WOULD BE B ETTER TO SAY N OT HI NG A LM OST T HAN TO SAY SOM ETHING THA T D ID N'T COVER AN OFFEN SE T HAT M IG HT BE A PRE DI CA TE O FFENSE F OR JIMMY RYCE ?

THAT COULD B E T RU E . I T HI NK WE' RE - -

YOU PROBABLY HAVE A L OT OF PROBLEMS WIT H THA T A SP EC T OF IT , B EC AU SE D OE SN 'T T HE STATUTE ACTUALLY S AY T HA T I T HAS B EEN FOUND B EY ON D A REASONABLE DOUBT, T HE C RI ME WAS SEX UA LL Y M OT IV ATED AND WE KEEP T ALKING ABOUT P LE AS AND THINGS LIKE THAT AND WHEN YOU REALLY ENT ERED THESE P LEAS THAT A RE - - I F YOU ARE P LE AD IN G T O SAY A BATTERY, AS O OS ED T O A SEX UAL BAT TERY , D OE S THA T PLEA I ND ICAT E I T H AS BEE N FOUND BEYOND A R EA SO NA BL E D OUBT THAT I T WAS SEX UA L LY MOTIVATED?

WELL, IN A P ER FE CT WORLD AT THE TIME OF A NY P LE A COLLOQUY THERE WOULD BE A F ACTUAL B ASIS R ECIT ED B Y T HE STATE ATTORNEY AND WE A LL KNOW THAT M ANY TIM ES P EOPL E STI LL STIPULATE TO T HE PROBABLE CAUSE AFFIDAVIT AND THE PLEA GOES T HR OU GH . I MEAN, I THI NK T HE P RO BLEM THAT ARI SE S I S THA T , AND I C AN U SE M R. CON TR ILLO 'S C AS E AS AN EXA MP LE W HI CH I ATTACHED TO THE A ENDI X REALLY WHEN THI S C OM ES D OW N THE ROAD NOW TO A CIV IL COMMITMENT PROCEEDING WE'RE GOING TO BE TALKING ABOUT TWO SEPARATE STANDARDS O F PROOF. THE STATE IS GOING TO H AVE TO SHOW THAT, A, IN O RD ER T O AROVE IN A CIVIL COMMITMENT CASE OF A P RI OR PREDICATE ACT, A P RIOR O R PRIOR CONVICTION, T HEY A RE GOING TO HAVE TO SHOW , A , THAT T HE C RIME WAS C OM MITT ED BY PROOF O F B EY ON D A R EASONABLE DOUBT TO H AV E BEEN SEXUALL Y MOTIV AT ED AND THEN THE JURY WILL HAVE TO MAKE A SEP AR AT E DETERMINATION BY CLEAR AND CONVINCING E VI DENC E A S TO WHETHER OR N OT T HE F IRST ELEMENT OF T HE C IVIL COMMITMENT CRI TE RI A H AS BEE N MET AND I THINK T HAT BRING S UP QUEST IO NS T HA T MAY A RISE DOWN THE ROAD WITH THIS COURT AS T O W HA T T HE M OTIO N TO B IF UR CA TE A ND W HETHER OR NOT R ESPOND EN TS W OU LD B E ENTITLED TO T WO SEP AR AT E JURIES. B UT NON ET HE LESS , I T HINK I T IS IMPORTANT AND I THI NK FROM A POLICY STAND PO IN T , T O INC LUDE THE L AN GUAGE O F T HE SEXUAL M OT IV ATION , E IT HE R A S A PRIOR ACT OR I N T HE P RESENT A CT , FRO M A P OLIC Y STAND PO IN T T O FOR ECLO SE 3 .850 D OW N T HE R OA D W HE RE THE DEFENDANT WOULD BE ALLEGING A FF IR MATIVE MIS AD VI CE THAT MY L AWYER DID N OT, YOU KNOW, TELL ME THAT I WOU LD BE SUBJECT UNDER THE P URVI EW OF THE JIMMY RYCE ACT , B Y ENTERING INTO A PLEA O R T HI S O R S OMET HI NG FRO M - - O R S OMETHING FROM THE PAST. SO I THINK FROM A P OLIC Y STANDPO INT IT MAK ES G OO D SENSE FOR THIS COURT TO ADOPT T HE RULE.

HOW ABOUT T HE L ANGUAGE SUGGESTED BY THE CRI MINA L DEFENSE LAWYERS ASSOCIATI ON ?

WE LL, I DON 'T - - I THI NK WE'RE ON THE S AM E P AG E AS T O THAT T HE L AN GU AGE O F SEXUA L MOTIVAT ION HAS TO BE I N THE RULE AS IT R EL AT ES T O EIT HE R THE PRESENT EVENT O R P RIOR CONVICTION, BUT I DON'T BELIEVE IN THEIR COMME NT S THEY A CTUA LLY S PE LLED O UT PROPOSED LANGUAGE, W HI CH I HAD D ONE I N PA RAGR AP H 7 O F MY C OM ME NT S AND I N W HI CH MR. WAY IND ICATED IN T HE BEGINNING, WHICH I BASICALLY TRACKED , F RO M S ECTION 394.912.

WHAT, AS I U NDER ST AN D , THE P RO PO SE D ADD IT IO NA L LANGUAGE WOULD BE SIMPLY T O SAY OR SEXUA LL Y M OTIV AT ED OFF ENSE.

CORRECT.

A A S O OS ED T O P UT TING LANGU AGE IN T HA T H AS T O D O WITH D ETER MINE D BEYOND A REASONABLE D OUBT A ND GOI NG F URTHER THAT YOU RUN I NT O THE PROBLEM, NOT ONL Y T HA T JUSTICE B ELL BRI NGS OUT , BUT Y OU U SE T HI S S TATU TORY LANGUAGE, AND IT J US T RUN S , I MEAN Y OU G LAZE O VE R PRETT Y Q UICKLY T HE P ER SO N THA T' S BEING READ TO , AND W E A RE TRYING TO M AK E I T SOMETHI NG THAT AT LEAST T HERE WOULD B E SOME T RI GGER I N THA T P ERSON'S MIN D T HA T T HE Y OUGHT TO B E O N T HE L OOKO UT .

I THINK FOR PUR PO SE S O F WHEN I FILED MY C OM MENTS I WAS TRYING TO B E M ORE INCLUSIVE BY T RA CK ING T HE STA TUTE, BUT , O F C OURSE , AND I AGREE THAT I MEA N W E WOULD H AVE N O O BJ EC TION O R B E I N AGREEMENT WITH A NY L AN GUAG E THAT ADDRESSES T HE ISSUE O F SEXUAL MOT IV ATIO N , E ITHE R I N THE PRE SENT O FFEN SE T HA T T HEY ARE PLEADING TO OR T O MAKE THE DEFENDANTS AWARE THAT IF YOU HAVE ONE I N Y OU R PRIOR HISTORY.

THE IMPORTANT THING I S HAVING IT IN THERE AS OOSED TO THE E LA BORATI ON , PERHAPS?

RIGHT, OR NOT HAVING I T AT ALL. I MEAN, THAT'S E SS EN TIALLY OUR POSITION AND AS I INDICATED, I JUST TRI ED TO BE MOR E I NCLUSI VE .

SO IF IT SAY S , A GAIN , THE CRIMINAL DEFENSE LAWYERS HAVE IT AS A S EXUA LL Y VIOLENT OFFENSE OR A SEXUALLY MOTIVATED OFF EN SE ?

RIGHT . AND IT SAYS THAT F OR B OT H PUR POSES OF, YOU K NO W , T HE PRESENT OFFENSE AND THE PRIOR OFFENSE, THE N I T HI NK THAT WOULD BE SAT IS FACTOR Y AND THAT W OULD F AI R LY A DV IS E THE D EFENDANTS OF T HE CONSE QUENCES OF ENTERING INTO THE PLEAS.

Y OU R I NTEN T W OULD - - W ELL , THE A CTUAL PLE A AGREE ME NT SHOULD ALSO HAVE THAT I N THERE.

YES, I THINK I T S HOUL D B E IN A WRITTEN P LE A A GREEMENT AND PART OF T HE PLEA COLLOQUY.

IS THAT SOMETHING I S THE PLEA AGREEMENT A F OR M THAT'S ATTACHED TO THE R UL ES OR IS I T E VERY C IR CUIT H AS A DIFFERENT PLEA AGREEMENT?

I THINK E VERY C IRCU IT USES A D IF FE RE NT P LE A AGREEMENT FORMS.

HAS A NY ON E EVER - - I GUESS THAT'S REALLY FOR THE RULES.

EVERY CIR CUIT OR E VE RY JUDGE OR EVERY P ROSE CU TO R?

THAT IS CORRECT.

R EA LLY? THANK YOU. THANK YOU VERY MUCH . MR. WAY, DO YOU H AV E A NYTHING TO A DD ?

JUST BRIEFLY, YOUR H ONOR. IN TAKING U P THE FIRST ISSUE ON THE PLEA FOR M A ND FOR EXAMPLE, I MEAN , JUSTICE BELL IS CORRECT. THEY VARY FRO M JUD GE S T O CIRCUITS. IN THE SECOND JUDICIAL CIRCUIT , JUDGE BAT E MA N H AS C OME UP WITH O NE AND T HE LAST FIVE PARAGRAPHS ARE BASICALLY ADD IT IO NS A ND IT TALKS A BOUT S EN TENC IN G ENHANCEMENTS, HFO AND O THER THING S SO IT ALL JUS T VARIES.

SO AND J UD GE BAT E MA N D OE S T HAT, WHEN HE IS D OING T HE PLEA COLLOQUY H E D ID N'T G O OVER EVERYTHING AGAIN T HEN , DOES HE JUST SAY HAVE YOU READ AND INI TI ALED EAC H PAR T OF IT OR HOW D OE S H E D O THAT?

HE WILL ASK, HAV E YOU READ THE PLEA FORM? HE WILL GO O VE R T HI NGS. HE DOES ADD, THIS I S HO W LONG IT TAKES, DO Y OU UNDERSTAND IF YOU ARE SENTENCED TO PRISON IN ANYCASE, HAVING B EE N CON VI CTED OF A SEX UALL Y M OT IV AT ED OR SEXUALLY VIOLENT O FFENSE AT THE END O F THE PRI SO N SENTENCE YOU COULD BE CIVILLY C OMMITTED TO THE DEPARTMENT OF C HILDREN AND FAMILIES FOR UP TO THE REST OF YOUR LIFE UNDER THE JIMMY RYCE ACT, AND THEN H E M OVES ON TO THE ARE YOU SURE T HIS IS WHAT YOU WANT T O DO LANGUAGE?

BUT THE COLLOQUY IS I N ADDITION TO THE PLEA FORM?

IN ADDITION TO THE P LEA FORM WHICH HE HAS IN HERE AS HIS PARAGRAPH 7 . HE WAS NIC E E NO UGH T O E MAIL TO ME A ND I'V E COO PTED I T F OR MY O WN U SE A ND H E PUTS IN THERE THE JIMMY RYCE STATUTES AND WHAT'S N ICE ABOUT THE WAY THAT IS USE D IS IT PUT S DEF EN SE C OUNSEL AND DEFEN DANTS O N NOTICE TO LOOK AT THE VAR IOUS STATUTES THAT ALY. I MEAN, 3 94 , WHI CH I S THE D EPARTMENT OF CHILDREN A ND FAMILY SER VICES STATUTE TO THE JIMMY RYCE ACT I S ACTUALLY IN THE WES T PAMPHLET, SORT OF THE BIBLE OF THE C RIMINA L DEF EN SE A ND PROSECUTORS.IT IS RIGHT THERE A ND S O PRESU MABLY WHEN YOUR C LIEN T IS REVIEWING THIS YOU HAV E THE RESOURCES AVAILABLE TO SAY THIS IS WHAT THE J IMMY RYCE ACT MEANS.

BUT AS FAR AS THE C OLLOQUY ITSELF , I T IS N OT IN ADDITION TO THAT. THE JUDGE IS ALSO D OING THE OTHER 14 MANDA TO RY T HINGS IN THE RULE IN ORDER T O D O T HE COLLOQUY, CORRE CT ?

HE I S GOING THROUGH W HA T HE IS R EQUIRED TO AND H E HAS ADDED IN THE JIMMY R YC E LANGUAGE AND IT DOES NOT A DD A S IGNIFICANT AMOUNT O F TIME.

WHY I SN 'T THE RE A U NIFO RM PLEA AGR EEMENT THAT, YOU KNOW, JUDGES COU LD A DD T O , BUT WOULDN'T THAT BE OF USE TO HAVE I T U NI FO RM ?

R ESPECTFULLY , YOUR H ON OR , JUDGES ARE - - JUD GE S W IT HI N EVEN THEIR OWN C IRCUIT S SOMETIMES HAVE A TEN DE NC Y .

T HA T MAY B E B UT T HA T MAY NOT BE WHAT'S IN THE BES T INTERESTS OF THE SYSTEM.I MEAN, WE HAV E D OM ES TI C VIOLENCE INJUNCTIONS THAT ARE MANDATORY A ND O NE O F T HE PROBLEMS THAT C ON DITION S OF PROBATION, Y OU K NO W , THA T COMES UP IS T HAT T HE SE SOMETIMES THINGS DON'T GET IN THAT SHOULD GET I N.

I CAN S PEAK O N B EH AL F O F JUDGE BATE MA N THAT H E W OU LD LOVE I T I F T HE S TATE U SED HIS FORM.

AND HIS JURY I NSTR UC TIONS, TOO, I K NOW THAT.

IF THERE ARE NO F URTHER QUESTIONS, YOUR HONOR.

THANK YOU VER Y MUCH , MR. WAY.

THANK Y OU T O E VERYBO DY O N T HIS PARTI CU LAR R UL E AND BEING OF SERVICE TO THE COURT.WITH THAT, WE WILL BE IN RECESS UNTIL 9:00 T OM ORROW MORNING.