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Alford v. State

Florida Court of Appeals, Second District

July 24, 2019

QUINTON DEWAUYN ALFORD, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Mark D. Kiser, Judge.

          Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.

          MORRIS, JUDGE.

         Quinton Alford challenges his sentences of ten years' sex offender probation for kidnapping and three years' sex offender probation for sexual battery. He argues that the special conditions of probation restricting his use of the internet are overbroad in violation of the First Amendment. He contends that the conditions are not narrowly tailored to further the government's interest in the protection of children or adults from sexual offenses or other crimes. He relies on Packingham v. North Carolina, 137 S.Ct. 1730 (2017), and argues that his conditions are even broader than the statute at issue in that case because his conditions prohibit him from accessing news, medical, and political information; prohibit him from seeking employment information online and applying for jobs; and prohibit him from electronically communicating with anyone; including elected officials.[1]

         Alford's order of probation contains two special conditions that restrict Alford's use of the internet. On page three of the order, special condition 28 provides:

28. Other: THAT HE SHALL NOT DOWNLOAD, ACCESS OR UTILIZE SOCIAL MEDIA OR OTHER SOCIAL NETWORKING (WHICH IS DEFINED AS WEB-BASED/DATA-BASED COMMUNICATION TOOLS THAT ENABLE PEOPLE TO INTERACT WITH EACH OTHER BY BOTH SHARING AND CONSUMING INFORMATION).

On page four of the order, special condition 27 provides:

(27) Effective for an offender whose crime was committed on or after July 1, 2005, and who are [sic] placed on supervision for violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, a prohibition on accessing the Internet or other computer services EXCEPT FOR WORK AND SHOPPING until a qualified practitioner in the offender's sex offender treatment program, after a risk assessment is completed, approves and implements a safety plan for the offender's accessing or using the Internet or other computer services. NO ACCESS TO SOCIAL MEDIA[.]

         Special condition 27 is authorized by section 948.30(1)(h), Florida Statutes (2016), except that the statute makes no mention of social media and does not provide for an exception for work and shopping.

         In Packingham, the United States Supreme Court held as unconstitutional a North Carolina statute "making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter." 137 S.Ct. at 1733. The Court held that the statute did not survive intermediate scrutiny because it was not narrowly tailored to serve the significant governmental interest of protecting victims of sexual offenses. Id. at 1736-37. The Court opined that "the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor" and that "[s]pecific laws of that type must be the State's first resort to ward off the serious harm that sexual crimes inflict." Id. at 1737. But by "foreclose[ing] access to social media altogether," the North Carolina statute "prevent[ed] the user from engaging in the legitimate exercise of First Amendment rights" and was thus unconstitutional. Id.

         There is one major distinction between Packingham and the instant case. The restrictions on Alford's access to the internet and social media are conditions of his probationary sentence, whereas the restrictions in Packingham were found in a statute that applied to sex offenders who had completed their sentences and were no longer subject to the supervision of the courts. See id. (noting "the troubling fact that the law [at issue] imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system"). There are no cases in Florida discussing Packingham, but several courts have acknowledged this distinction and refused to extend Packingham to internet-restricting conditions of supervised release or probation.

         In United States v. Antczak, 753 Fed.Appx. 705, 714 (11th Cir. 2018), a term of the defendant's lifetime supervised release prevented him from possessing or using a computer without prior approval from the court, with any use being related to authorized employment. The Eleventh Circuit rejected the defendant's claim that Packingham ...


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