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State v. Torres12/3/2004
uently convicted and further punished, he would have suffered multiple punishments. We hold that the pretrial condition imposed does not constitute punishment.
Mr. Torres argues that section 948.03(4) does not provide statutory authority for the court to impose sex offender counseling as a pretrial release condition. We agree. The statute expressly applies only to a probationer or an offender in community control, a person who has been convicted. At the time the court imposed the condition, Mr. Torres was neither on probation nor under community control. The trial court was thus correct to grant the defense motion to strike that condition requiring Mr. Torres to undergo counseling. However, the improper imposition of a pretrial release condition, particularly where, as here, it is of short duration and limited impact, does not necessarily rise to the level of a punishment.
Generally, conditions of pretrial release, when the accused is still presumed innocent, are imposed to insure that the defendant will refrain from criminal activity and from contact with the victim except through pretrial discovery. § 903.047, Fla. Stat. (2002). The purpose of a bail bond or recognizance bond is to insure the presence of the defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant. § 903.046, Fla. Stat. (2002). At the stage of the proceedings when the court is considering pretrial release or detention, the court is not engaged in a determination of guilt or punishment. See Warneke, 199 F.3d at 908 (holding that pretrial detention is remedial, not punitive). Like pretrial detention, conditional pretrial release is, even more so, remedial and not punitive. Therefore, for purposes of the Double Jeopardy Clause, conditional pretrial release cannot be considered punishment.
In sum, we hold that the first appearance hearing at which the order for counseling was entered was not a stage that triggered jeopardy, and the pretrial order entered at that first appearance hearing requiring Mr. Torres to undergo counseling did not constitute punishment under the Double Jeopardy Clause of the United States or Florida Constitutions. In reaching this conclusion, we have found persuasive and agree with the reasoning expressed in Halikipoulos v. Dillon, 139 F. Supp. 2d 312 (E.D.N.Y. 2001) (finding that a pretrial release condition requiring a defendant accused of shoplifting to pay for and participate in a one-day program designed as a "remediation and education program for beginning shoplifters" did not constitute a violation of double jeopardy).
Reversed and remanded with instructions to reinstate the charge and for further proceedings.
KELLY and WALLACE, JJ., Concur.
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