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Can the Judge in a Florida Criminal Case Order Sex Offender Therapy for Defendant Not Convicted of Sex Offender Crime?

In Florida, there are certain crimes that require a judge to sentence the defendant to sex offender therapy if the defendant is convicted of the crime, i.e. either enters a plea of guilty or no contest to the charge or is convicted of the charge at trial. Normally, these sex offense crimes are serious felonies like lewd and lascivious molestation of a minor. A conviction for such an offense will likely result in not only sex offender therapy but prison time and sex offender status which mandates that a person goes on the sex offender list for life.

What if a defendant is convicted of a crime that is not one of the enumerated sex offenses under Florida law, but the state or the judge still wants to require the defendant to participate in sex offender therapy while on probation?

In a sex case near Jacksonville, Florida, the defendant was charged with lewd and lascivious molestation and went to trial. A conviction of that charge would have resulted in a sentence of sex offender therapy (likely after a prison sentence) and sex offender status for life. The jury found the defendant not guilty of the lewd and lascivious charge but found the defendant guilty of a lesser included offense. A lesser included offense verdict occurs when the jury finds that there is not sufficient evidence to convict a defendant of the main charge, but the jury finds the defendant’s conduct did rise to the level of a less serious crime. As a result, the jury will find the defendant guilty of the less serious charge. In this case, the less serious charge the jury decided on was battery, which is a misdemeanor. A battery also does not have any sex offense connotations. Molesting a minor will always also be a battery, but a battery usually does not involve sexual molestation.

After the verdict on the misdemeanor battery charge, the judge sentenced the defendant to complete sex offender therapy while on probation. The criminal defense attorney appealed arguing that the judge could not sentence the defendant to sex offender therapy since the defendant was not convicted of a sex offense.

The Florida Supreme Court ruled that the Florida statutes do not prohibit a judge from sentencing a person to sex offender therapy for an unlisted charge just because the statute lists certain crimes that require the therapy. The Court noted the broad discretion judges have in imposing sentences upon defendants after conviction. However, the sex offender therapy condition has to be reasonably related to facts of the case and the crime of conviction. A judge would not be able to force a defendant to undergo sex offender therapy after a DUI conviction, but if the facts illustrate some issue with sexual misconduct, such a sentence would likely be legal.