DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TERRY D. WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-4245

[April 25, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Charles E. Burton, Judge; L.T. Case No. 

502016CF006004AMB.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public 

Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven 

Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges a final judgment finding him to be a sexually 

violent predator and committing him to custody and treatment pursuant 

to the Jimmy Ryce Act. He contends that the trial court erred in allowing 

the State to present hearsay evidence of prior, unproven allegations of 

sexual conduct, including allegations from two cases on which the State

did not file charges and one in which appellant was acquitted of the 

charges of a sexual nature. We agree that the court abused its discretion

in allowing the State to use these incidents, as they were unreliable. Their 

use was not harmless. We therefore reverse.

The State filed a petition for involuntary commitment of appellant as a 

sexually violent predator pursuant to the Jimmy Ryce Act, section 

394.914, Florida Statutes (2016). It alleged that: appellant had been 

convicted in 1997 for two counts of a sexually violent offense, namely lewd 

and lascivious acts on a minor; he was currently incarcerated but set for 

release; had multiple personality disorders and suffered from pedophilia; 

and would be likely to commit other sexually violent acts unless he was 
2

subject to long term custody and treatment.1 The court found probable 

cause, as is required under section 394.915(1), and appellant was held in 

custody.

Prior to trial, appellant moved in limine to exclude evidence of any 

unproved criminal conduct, namely two incidents of molestation of a 

person twelve or older, one in 2004 and one in 2008. In each, although 

he was arrested, the State did not file any charges against him. Appellant 

also moved to exclude evidence of a 2010 case in which he was charged 

with attempted sexual battery but found guilty of simple battery, a lesser 

offense. Appellant never admitted the allegations against him in any of 

these cases. The trial court denied the motion in limine.

At the jury trial on the petition, the State presented a psychologist as 

its sole witness. The psychologist testified that he relied on the arrest 

reports for the above cases, pre-sentence investigation reports, past 

judgments, and other Department of Correction records to evaluate the 

appellant. Appellant had refused to speak with the psychologist, so the 

psychologist relied on appellant’s prison record and prior criminal history 

in determining that he was a sexually violent predator in need of 

treatment.

The psychologist first provided the details of the original 1997 incident 

which amounted to lewd acts on a nine-year old girl. Appellant entered a 

negotiated plea to those allegations and was designated a sexual offender. 

Over appellant’s renewed objection, the psychologist was allowed to relate 

the details of the 2004, 2008, and 2010 incidents, which he had gleaned 

from the various police reports on the incidents. The 2004 incident 

involved a lewd and lascivious act on a female child between twelve and 

eighteen; the 2008 incident constituted an arrest for a sexual battery on a 

“mentally retarded” boy who was twelve year old at the time of the incident; 

and in the 2010 incident, the victim was a girl between twelve and sixteen

years old who reported that she had awakened to find her pants pulled 

down and appellant kissing her buttocks and vagina. For the 2010 

incident, he was charged and tried for attempted sexual battery, but the 

jury found him guilty of the lesser offense of simple battery. The probable 

cause affidavits on all the incidents, the final judgment of the 1997 case, 

the state’s filing of a “no information” on the 2004 and 2008 incidents, and 

 

1 Because of the 1997 conviction, appellant was designated a sexual offender and 

required to register with the State. When he failed to register in 2010, the State 

charged him with failure to register, and he was sentenced to prison. It was at 

the end of the imprisonment for failure to register that the Jimmy Ryce petition 

was filed.
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the final judgment of conviction in the 2010 incident were entered into 

evidence.

The psychologist explained that appellant had been screened for 

commitment as a sexually violent predator in 2002 prior to his release 

from prison for the 1997 conviction, but he did not meet the criteria for a 

face-to-face interview when he had only one conviction. In 2016, however, 

with four sexually violent offenses, he now qualified for commitment. 

Thus, the three incidents in 2004, 2008, and 2010 were the significant 

qualifying factors for the psychologist’s opinion.

The jury found that the appellant was a sexually violent predator. In 

its order, the court committed the appellant to the custody of the 

Department of Children and Families. Appellant filed this appeal, 

challenging the admission of the three prior incidents.

Appellant contends that the court abused its discretion by allowing 

admission of the 2004, 2008, and 2010 incidents because the evidence 

was unreliable. A trial court’s ruling on the admissibility of evidence in 

this civil commitment proceeding is reviewed for an abuse of discretion. 

Delgado v. State, 125 So. 3d 180, 183 (Fla. 4th DCA 2013).

The Jimmy Ryce Act applies the Florida Rules of Evidence but contains 

a specific provision with respect to the use of hearsay evidence:

(5) Hearsay evidence, including reports of a member of the 

multidisciplinary team or reports produced on behalf of the 

multidisciplinary team, is admissible in proceedings under 

this part unless the court finds that such evidence is not 

reliable. In a trial, however, hearsay evidence may not be used 

as the sole basis for committing a person under this part.

§ 394.9155(5), Fla. Stat (2016). The pertinent question in this case is 

whether the admitted hearsay of the three other incidents was reliable.

In Jenkins v. State, 803 So. 2d 783, 785 (Fla. 5th DCA 2001), the court 

considered the application of this section in similar circumstances where 

the State had presented evidence against a Jimmy Ryce defendant of 

“police reports containing unsworn allegations of serious sexual 

misconduct . . . .” The court cautioned:

Courts must recognize the distinction between police reports 

which contain unchallenged and unchallengeable prejudicial 

hearsay and police reports which relate to cases in which the 
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respondent has pled or has been convicted. It is only the latter 

which have an indicia of reliability.

Id. The police reports in Jenkins were read at trial by officers, many of 

whom did not even prepare them, and the officers related statements of 

witnesses involving details of which the officers had no knowledge. Id. at 

786. The court found the statements to be completely unreliable.

We followed Jenkins in Delgado v. State, 125 So. 3d 180 (Fla. 4th DCA 

2013). In this Jimmy Ryce civil commitment proceeding, the trial court 

allowed the State’s expert to testify regarding a sexual offense of which the 

defendant had been acquitted. Id. at 182-83. We concluded that the trial 

court abused its discretion, because the defendant had disputed the 

allegations of the charge underlying the acquittal, and a jury had acquitted 

him of the charge. Id. at 183. Thus, nothing in the record supported a 

finding of reliability. Id. We specifically cited from Jenkins: “[The 

defendant] was committed, to a large extent, on the testimony of out-ofcourt witnesses given through the mouths of police officers, which 

testimony lacked the indicia of reliability resulting from a trial which ended 

either in a conviction by the factfinder or in a plea to an offense relating to 

the critical allegations . . . . The introduction of this unreliable evidence 

was so prejudicial that it tainted the entire proceedings.” Id. (citing 

Jenkins, 803 So. 2d at 787). 

The 2004 and 2008 incidents in this case similarly lack any indicia of 

reliability. Only the psychologist testified about them and was allowed to 

relate the contents of police reports filled with out-of-court statements of 

others regarding the sexual misconduct alleged. Appellant never admitted 

any of the allegations. Significantly, the State itself filed a “no information” 

as to each of these incidents, declining to prosecute the defendant, which 

undermines the reliability of the probable cause information. As there was 

no other information to support their reliability, the trial court abused its 

discretion in allowing the expert to testify to their contents and allowing 

them to be admitted into evidence.

As to the 2010 incident, the State tried appellant on a charge of 

attempted sexual battery, but appellant was convicted of a lesser included 

charge of simple battery. In Delgado, a similar situation occurred. 

Delgado was charged in a 2000 incident with lewd and lascivious conduct

involving a person under sixteen years of age, but the jury found him guilty 

of simple battery. Id. at 182. The State sought to use that conviction as 

part of the incidents supporting his involuntary civil commitment under 

the Jimmy Ryce Act. Id. The court bifurcated the trial and first required 

the jury to determine whether the simple battery conviction was sexually 
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motivated, which the jury found it was. Id. The State then was allowed to 

use that conviction to support the finding that Delgado was a sexually 

violent predator based on his overall history. Id. Delgado did not contest 

the use of this conviction on appeal. The State suggests that we should 

interpret Delgado to allow the 2010 attempted sexual battery charge, even 

though the jury did not find that he committed the offense. Since Delgado 

never ruled on the reliability of this evidence, it is not controlling of the 

issue in this case.

Delgado did hold that the trial court abused its discretion in admitting 

into evidence a charge of lewd or lascivious conduct where the defendant 

had been acquitted of that charge. Id. at 183. “The defendant not only 

disputed that charge, but a jury acquitted him of that charge. Thus, there 

is nothing in the record which causes the [S]tate’s hearsay evidence 

regarding that charge to be reliable.” Id. Similarly, in this case, what the 

expert testified to and what the police report revealed was a sexual battery, 

but the jury hearing the criminal case against appellant obviously did not 

find the appellant guilty of any sexual crime. The trial court had no 

evidence of reliability of the sexual aspects of the crime as detailed in the 

police report and other Department of Corrections records. The jury’s 

findings, essentially acquitting him of the greater charge, cast considerable 

doubt on the reliability of the statements in the report.

Had the court conducted a bifurcated proceeding to determine first 

whether the 2000 battery conviction was sexually motivated, the State may 

have been able to offer proof of the allegations by calling the victim in that 

offense and presenting other evidence to support the fact that there was 

sexual contact. The record in this case does not contain anything but 

hearsay within hearsay, proved to be less than reliable by a jury verdict 

which found no sexual aspect to the 2010 incident. The trial court thus 

abused its discretion in admitting this evidence.

We distinguish Pesci v. State, 963 So. 2d 780 (Fla. 3d DCA 2007), relied 

on by the State. In Pesci, the court allowed the use of police reports of a 

New York sexual offense where the defendant had admitted to 

psychologists the accuracy of most of the hearsay evidence presented. Id.

at 785. In addition, rather than contest the charges in those police reports, 

the defendant fled from New York; thus, he did not confront his accusers, 

which showed a consciousness of guilt. Id. at 782, 785. In contrast, here, 

the appellant never admitted any of the hearsay evidence; went to trial on 

the only case filed against him; and was acquitted of the attempted sexual 

battery.
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The admission of these three incidents was not harmless. They formed 

the core of the case for appellant’s involuntary commitment. Without 

them, the State had no incidents subsequent to the 1997 conviction, which 

the expert conceded did not warrant a referral for involuntary 

commitment.

For these reasons, we reverse and remand for a new trial. In any new 

trial, we do not preclude the State from offering other reliable evidence of 

the 2004, 2008, and 2010 incidents which would support their use in 

determining whether appellant is a sexually violent predator in need of 

long term custody and treatment.

Reversed and remanded for a new trial. 

CONNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.