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Civil Penalty as Part of Criminal Sentence in Florida Prostitution Cases

There are different types of Miami prostitution crimes, and some of them, such as repeat solicitation offenses, are punished harshly. In a recent Florida appellate court decision concerning prostitution, the government appealed from a county court order in which the court didn’t assess a civil penalty under Florida Statute section 796.07(6), finding on its own that the code section was unconstitutional. On appeal, the government argued that the statute was constitutional and that the court refusing to impose the mandatory penalty made the sentence unlawful.

The case arose when the defendant allegedly offered to pay an undercover cop for oral sex and was arrested for soliciting prostitution under section 796.07(2)(f). The public defender negotiated a plea with the government that the defendant would plead no contest to solicitation of prostitution and in exchange, the court would withhold adjudication, require the defendant to perform 75 community service hours, and put the defendant on probation for six months. The defendant also agreed to pay $5000 in a mandatory civil penalty that section 796.07(6) required. Before the plea was entered, the defense attorney asked if the lower court would put him on a payment plan for the penalty, and the judge said he would. The sentence was pronounced, but a colloquy was had in which the judge noted that he was allowed to consider statutes to be unconstitutional if they were irrational and found that the statute mandating the civil penalty was unconstitutional.

The court wouldn’t impose the penalty in spite of the government arguing it was a mandatory civil penalty that was enacted in order to discourage prostitution and fund certain programs. In the judgment, it stated that the lower court had waived the penalty. The court entered a separate written order that included background facts about the defendant. It stated the defendant was a sole breadwinner making about $10,000 per year and had a wife and child to support. The court noted its concern that there wasn’t a reasonable way for the defendant to pay the fine.

The government appealed and had the appeal transferred to the Third District Court of Appeal. The defendant argued the government didn’t have the authority to appeal the order, but the appellate court disagreed. It explained that the refusal to impose a civil penalty came by final order and the government’s authority to appeal as prescribed by statute.

The court addressed whether the mandatory civil penalty was considered part of the sentence such that the prosecutor could appeal the lower court’s failure to impose it. The defendant argued it wasn’t part of the sentence and couldn’t be appealed because it was a civil penalty, and not part of the criminal punishment for a prostitution violation but was assessed for a remedial purpose.

The appellate court found that the civil penalty could be construed as part of the criminal sentence. It noted that the civil penalty was included in section 796.07, which prohibits prostitution and related crimes, and it was part of the dispositive order.

The appellate court also found there was an error in the lower court declaring the statute unconstitutional. Neither party had raised constitutionality and had expressly negotiated the plea to include the civil penalty. The appellate court had raised the issue on its own while orally pronouncing the sentence. The court is not supposed to declare a legislative act to be unconstitutional unless is unconstitutionality is raised by somebody who shows he will be negatively impacted by it. The case was reversed and remanded.

Prosecutors take prostitution and solicitation seriously in Miami. If you’re accused of, investigated for, or charged with a prostitution and solicitation crime in Miami, you should retain a skillful criminal defense attorney. Call The Hoffman Firm at (305) 928-1669, or contact us via our online form.

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