FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5063
_____________________________
CHARLES W. BURNSED,
Petitioner,
v.
FLORIDA COMMISSION ON
OFFENDER REVIEW,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
November 27, 2018
B.L. THOMAS, C.J.
This petition for writ of certiorari seeks review of an order
denying a petition for writ of habeas corpus. Petitioner raises
four arguments, three of which were not raised below, and which
we therefore will not discuss. Our review is limited to a
determination of whether the circuit court afforded due process
and whether it observed the essential requirements of law. See
Sheley v. Fla. Parole Comm’n,
720 So. 2d 216 (Fla. 1998). We
deny the petition.
Petitioner is an inmate in the custody of the Department of
Corrections. In 1997, he entered a plea to attempted capital
sexual battery and four counts of handling or fondling a female
child under the age of sixteen. The parties stipulated to an
offense date of 1991. The trial court declared Petitioner a sexual
predator, but, in light of the stipulation, the Second District
subsequently reversed that declaration, finding that the sexual
predator statute specifically applied only to convictions for crimes
committed on or after October 1, 1993. See Burnsed v. State,
743
So. 2d 139 (Fla. 2d DCA 1999).
Petitioner was released onto conditional release for the first
time in 2010 and his supervision was to last until 2026. The
Florida Commission on Offender Review imposed 30 conditions of
release, including special condition 28, which mandated that
Petitioner was not to access the internet “until your sex offender
treatment program has completed a risk assessment and
approves and implements a safety plan for your access to the
internet.” Petitioner signed these conditions, but included the
caveats “under 947.1405 my offense date is 1991 I am not subject
to these conditions.” From 2010 to 2015, Petitioner was alleged
to have violated the conditions of his conditional release six
times. Each time, the Commission elected to continue his
conditional release supervision.
In April of 2016, the Commission issued a warrant alleging
that Petitioner twice violated special condition 28 by accessing
the internet on his cell phone to search “Kowasaki.” Petitioner
entered a plea of guilty, and a Commission Investigator
recommended that supervision be reinstated. Instead, the
Commission voted to revoke Petitioner’s conditional release.
Petitioner challenged the revocation of his conditional
release by filing a petition for writ of habeas corpus in the circuit
court. In the petition, he argued that he had been placed on
conditional release for crimes he never committed. He also asked
the circuit court to “offer an opinion” on the mandatory language
in section 947.1405, Florida Statutes, noting that in Biller v.
State,
618 So. 2d 734 (Fla. 1993), the Florida Supreme Court
found that conditions imposed as part of probation must be
related to the offense.
Petitioner first argues to this Court that the Commission
violated his due process by imposing special conditions of
conditional release that applied to sexual predators. He argues
2
that because he committed his offenses in 1991 and is not a
sexual predator, section 947.1405(7), Florida Statutes, which
requires the imposition of special sexual offender conditions for
offenses committed after 1995, cannot apply to him. This Court
rejected this argument in Grace v. Florida Parole Commission,
985 So. 2d 1213, 1214-15 (Fla. 1st DCA 2008), where we found
that “[a]lthough the special sexual offender conditions imposed on
the petitioner are similar to the mandatory special sexual
offender conditions set forth in section 947.1405(7), Florida
Statutes (2005), the FPC’s discretionary authority under section
947.1405(6), Florida Statutes (1990), to impose any special
conditions it considers warranted based on its review of the
petitioner’s record was not limited in any way.” As in Grace, here
the Commission had the discretion to impose any special
conditions it deemed warranted, including special condition 28.
See also Velez v. State,
23 So. 3d 808 (Fla. 2d DCA 2009).
Petitioner also argues that the special terms and conditions
had no relationship to the crime for which he was convicted,
citing Spano v. State,
60 So. 3d 1108 (Fla. 4th DCA 2011). Even
if we agreed with Petitioner’s characterization of the special
conditions imposed, Spano is not applicable here; in that case, the
Fourth District struck a special condition of probation, applying
the rule that “‘[a] special condition of probation cannot be
imposed if it is so punitive as to be unrelated to rehabilitation.’”
Id. at 1109 (quoting Williams v. State,
474 So. 2d 1260, 1260 (Fla.
1st DCA 1985)). See also Biller,
618 So. 2d 734. The restrictions
on special conditions of probation do not apply to special
conditions of conditional release. By statute, the Commission
may impose any special conditions it deems warranted after a
review of an offender’s record. See § 947.1405(6), Fla. Stat. (1990)
(“The commission may impose any special conditions it considers
warranted from its review of the release plan and
recommendation.”).
DENIED.
MAKAR and WINSOR, JJ., concur.
3
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Charles W. Burnsed, pro se, Petitioner.
Rana Wallace, General Counsel, Commission on Offender
Review, Tallahassee, for Respondent.
4
