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Criminal but Civil Penalty - Solicitation of Prostitution

In August 2014 I wrote about a Florida Court finding that in criminal cases of solicitation of prostitution the mandatory civil penalty ($5,000) is unconstitutional. Since then the matter has continued to be fought in courts. People who picked up charges of soliciting could still have imposed this penalty but depending on their representation, the sentencing court could have deferred imposing the penalty, left open the possibility of removing the fine or refused to impose the penalty all together.

Recently, one Florida Appellate Court ruled that the imposition of this penalty is constitutional and that the trial courts that have found the penalty unconstitutional are incorrect. The Fourth District encompassing counties to the south of the Gainesville/Ocala area issued its opinion December 2, 2015. For now, that is the law of the land in Florida.

However, there is still another case pending on the same exact issue in the Second District Court of Appeal. If the Second District ends up agreeing with the Fourth, then you can count this issue as dead and look forward to fighting the charge more intensely. Theoretically, the Second District could issue an opinion that conflicts with the Fourth.

A conflicting opinion would create a situation where the imposition of the civil penalty is not an excessive criminal fine in some parts of Florida while the penalty is considered excessive and unconstitutional in other counties.  Therefore, if a conflicting opinion is issued, the Supreme Court would likely consider the issue.

For those whose cases are in the 8th Circuit (Alachua, Baker, Bradford, Gilchrist, Levy and Union), the 5th Circuit (Citrus, Hernando, Lake, Marion and Sumter), the 4th Circuit (Clay, Duval and Nassau) or the 3rd Circuit (Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee and Taylor) a conflicting opinion means that our courts get to choose which side they agree with. Until there is a conflicting opinion, the penalty has been found constitutional and all trial level courts have to follow that opinion.

This leaves those people accused of crimes in North Florida crossing fingers and hoping the Appellate Courts create a conflict. Do more than cross your fingers, if you are reading this, then click, call or fill out the form to consult with a lawyer.

Fourth District case of State v. Jones

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