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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOHN RICHARD THERRIEN,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOT ION FOR REHEARING AND
Appellant,
DISPOSITION THEREOF, IF FILED.
v.
CASE NO. 1D01-3403
STATE OF FLORIDA,
Appellee.
___________________________/
Opinion filed November 25, 2003.
An appeal from a final order from the circuit court for Escambia County.
John P. Kuder, Judge.
Charles V. Peppler of Vernis & Bowling of Northwest Florida, Pensacola, Attorney
for Appellant.
Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General,
Tallahassee, Attorneys for Appellee.
BOOTH, J.
This cause arises from an appeal of a post-judgment order designating Appellant
as a sexual predator pursuant to section 775.21, Florida Statutes (2000), as amended
effective October 1, 1998.1
1 On August 20, 1997, Appellant pleaded nolo contendere to attempted sexual battery
by a person under eighteen years of age upon a person under twelve years of age, in violation

The order on review addressed the October 1998 amendment to the Florida
Sexual Predator Act ("Florida Act"). The trial court found the amendment's
expansion of the sexual predator criteria, to include attempted sexual battery as a
qualifying felony and permit sexual predator status without a predicate conviction, was
procedural. Therefore, the trial court concluded that the 1998 amendment to the
Florida Act could be applied retroactively to Appellant's August 1997 convictions for
attempted sexual battery upon a person less than 12 years old and lewd and lascivious
assault upon a child less than 16 years old. The trial court also held that the Florida
Act does not violate separation of powers.
On appeal, Appellant argues that the Florida Act violates separation of powers
and procedural due process requirements. Appellant also challenges the retroactive
application of the amended Florida Act to him. We affirm Appellant's designation as
a sexual predator and hold that the Florida Act is constitutional and was properly
applied retroactively to Appellant.
of section 794.011(2), Florida Statutes, and lewd and lascivious assault upon a child less than
sixteen years old, in violation of section 800.04, Florida Statutes. These crimes were alleged
to have been committed in November 1996. The trial court withheld adjudication of guilt on
each count and imposed concurrent five-year probationary sentences with a suspended county
jail sentence of eleven months and fifteen days. On October 6, 2000, the State filed a motion
seeking to qualify Appellant as a sexual predator pursuant to section 775.21, as amended on
October 1, 1998.
2

The Florida Act provides that those meeting the criteria of "sexual predator" are
subject to registration and notification requirements and to certain employment
restrictions. Thus, "sexual predators" must register with the Florida Department of
Law Enforcement within 48 hours of being released from a correctional or treatment
facility and within 48 hours of entering a county to take up residence. § 775.21(6), Fla.
Stat. (2000). The Florida Act also requires that local law enforcement agencies notify
the public of each registered sexual predator's name, appearance, address, and certain
details of the offense, including whether the victim was a minor. § 775.21(7), Fla. Stat.
(2000). Finally, the Florida Act prohibits certain sexual predators from obtaining
employment that affords access to children. § 775.21(10)(b), Fla. Stat. (2000).
In March 2003, the United States Supreme Court rendered its decisions in
Connecticut Dep't of Public Safety v. Doe, U.S. , 123 S. Ct. 1160 (Mar. 5,
2003), and Smith v. Doe, U.S. , 123 S. Ct. 1140 (Mar. 5, 2003), addressing the
constitutionality of sexual predator acts in Connecticut and Alaska. In Connecticut,
supra, at 1163, the United States Supreme Court explicitly rejected the defendant's
argument that the registration and notification requirements of the Connecticut statute
violated procedural due process. The United States Supreme Court held, in pertinent
part, as follows:
3

[E]ven assuming, arguendo, that the respondent has been deprived of a
liberty interest, due process does not entitle him to a hearing to establish
a fact that is not material under the Connecticut statute. . . . [T]he fact
that respondent seeks to prove that he is not currently dangerous is
of no consequence under Connecticut's Megan's Law. . . . [T]he law's
requirements turn on an offender's conviction alone a fact that a
convicted offender has already had a procedurally safeguarded
opportunity to contest. No other fact is relevant to the disclosure of
registrant's information.
Connecticut, supra, at 1164 (citations omitted) (emphasis supplied). In Smith, supra,
at 1154, the United States Supreme Court upheld the constitutionality of the Alaska
Sex Offender Registration Act, requiring registration and publication of sex offender
information. The Court held that the Act was nonpunitive and did not violate the Ex
Post Facto Clause. Smith, supra, at 1152.
In the instant case, Appellant's conviction is the only material fact necessary for
the imposition of the requirements of section 775.21.2 Appellant does not challenge
the hearing afforded on his plea nor the opportunity allowed to contest his conviction.
Appellant is not entitled to a separate hearing to prove that he does not pose a danger
or threat to society.
2 Appellant was convicted of the qualifying offenses for purposes of the Florida Act;
section § 775.21(2)(c), Florida Statutes (2000) defines conviction as "a determination of guilt
which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of
whether adjudication is withheld."
4

As with the registration and notification requirements, the only material fact
relevant to an employment restriction for sexual predators is a conviction involving
minors. Therefore, in the present case, the only material fact for imposition of the
employment restrictions is Appellant's conviction of an offense involving a minor.
Accordingly, we hold that section 775.21 does not violate Appellant's rights to
procedural due process under the state or federal constitutions. Accord Milks v.
State, 848 So. 2d 1167 (Fla. 2d DCA 2003) (holding that, based on the United States
Supreme Court decision in Connecticut, the Florida Act does not violate procedural
due process requirements). But see Espindola v. State, 28 Fla. L. Weekly D2406 (Fla.
3d DCA Oct. 22, 2003) (holding that the Florida Act was distinguishable from the
statutes in Smith and Connecticut and, therefore, violated procedural due process and
certifying conflict with Milks).
Appellant correctly argues that an amendment that creates new rights or liabilities
is presumed to apply prospectively. The presumption does not apply, however,
where, as here, the Legislature has clearly stated an intent that the Act apply
retroactively. See Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla.
1996). Section 775.21(4), Florida Statutes (2000), provides that the Act applies to
offenses "committed on or after October 1, 1993."
5

Once the statute shows a clear intent for retroactive application, the second
inquiry is "whether retroactive application is constitutionally permissible."
Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla.
1999). We hold that the retroactive application of section 775.21 is constitutionally
permissible because the statute does not violate the procedural due process clauses
of the state and federal constitutions.3 Connecticut, supra; Smith, supra. Therefore,
the trial court did not err in applying section 775.21(4), as amended, to Appellant.
We affirm Appellant's remaining arguments on appeal without further
discussion. We certify the following question as a question of great importance:
WHETHER THE RETROACTIVE APPLICATION OF THE
PERMANENT EMPLOYMENT RESTRICTIONS OF SECTION
775.21(10)(b), FLORIDA STATUTES (2000), TO A DEFENDANT
CONVICTED AND QUALIFIED AS A SEXUAL PREDATOR,
WITHOUT A SEPARATE HEARING ON WHETHER SUCH
DEFENDANT CONSTITUTES A DANGER OR THREAT TO
PUBLIC SAFETY, VIOLATES PROCEDURAL DUE PROCESS.
AFFIRMED.
VAN NORTWICK, J., CONCURS; BENTON, J., DISSENTS WITH WRITTEN
OPINION.
3 In his supplemental reply brief on the procedural due process claim, Appellant
explicitly disavows raising any substantive due process claim.
6

BENTON, J., dissenting.
The present case asks the question whether a person never adjudicated guilty
of any crime can nevertheless constitutionally be precluded for life from working
anywhere children regularly congregate, without being afforded an opportunity to show
that doing so would pose no danger to the public safety. In my judgment, the answer
to this question is no, and I respectfully dissent from the judgment of the court for that
reason.
Appellant was arrested and charged as a juvenile for offenses that allegedly took
place in November of 1996, when he was sixteen. Eventually prosecuted as an adult,
he entered pleas of nolo contendere to two second degree felonies: attempted sexual
battery by a person under eighteen years of age upon a person under twelve years of
age, in violation of section 794.011(2)(b), Florida Statutes (1995), and lewd and
lascivious assault upon (apparently the same) child less than sixteen years of age, in
violation of section 800.04, Florida Statutes (1995).
An able and highly experienced trial judge decided against adjudicating appellant
guilty of any criminal offense, no doubt in the hope that appellant had learned his
lesson and would one day become a contributing member of society. The trial court
withheld adjudication of guilt on both counts, and imposed concurrent five-year
7

probationary terms conditioned on a county jail sentence of eleven months and fifteen
days, which was suspended.
On October 6, 2000, the state filed its amended motion for an order finding that
appellant qualified as a sexual predator under the Florida Sexual Predators Act. The
motion relied on amendments enacted after appellant had allegedly committed the
offenses nearly four years earlier.4 After a hearing on the motion, the trial court entered
4 At the time appellant allegedly committed the second degree felony offenses in
violation of sections 794.011(2)(b) (attempted sexual battery by a person under eighteen years
of age upon a person under twelve years of age) and 800.04 (lewd and lascivious assault upon
a child less than sixteen years old), the Act did not apply to him because he had no previous
conviction and the alleged felonies were not capital, life or first-degree.
(c) For a current offense committed on or after October
1, 1996, upon conviction, an offender shall be designated
as a "sexual predator" . . . if:
1. . . . the felony is:
a. A capital, life, or first degree felony violation of
chapter 794 . . . or
b. Any second degree or greater felony violation of
chapter 794, [or] s. 800.04 . . . and the offender has
previously been convicted of or found to have committed,
or has pled nolo contendere or guilty to, regardless of
adjudication, any violation of s. 794.011(2) . . . [or] s.
800.04 . . . .
§ 775.21(4)(c), Fla. Stat. (Supp. 1996). Effective October 1, 1998, the Legislature amended
the statute to add a third category of qualifying crimes, if committed on or after October 1,
1996, viz.: "An attempt to commit a capital, life, or first-degree felony violation of chapter
794, where the victim is a minor, or a violation of a similar law of another jurisdiction." Ch.
98-81, § 3, at 591, Laws of Fla. (codified as § 775.21(4)(c)1.b., Fla. Stat. (Supp. 1998))
(emphasis supplied).
Chapter 98-81 broadened the reach of the statute so that appellant's plea of nolo
contendere to attempted sexual battery by a person under eighteen years of age upon a person
under twelve years of age qualified him as a sexual predator. See § 794.011(2)(b), Fla. Stat.
(1995).
8

the order under review, finding on August 7, 2001, that appellant qualified as a sexual
predator, and ordering him to register with the Florida Department of Law
Enforcement.
In addition to registration and publicity requirements, the Act's prohibition
against "work[ing], whether for compensation or as a volunteer, at any business,
school, day care center, park, playground, or other place where children regularly
congregate" precludes appellant's working in all occupations that involve interaction
with children, and in many that do not. § 775.21(10)(b), Fla. Stat. (2000). The french
fry cook in a fast food establishment that high school students regularly patronize, the
school janitor, the day care center roofer, the park groundskeeper, and many other
positions are off limits for people covered by the Act. This blanket, life-long
restriction on the right to work "[any]where children regularly congregate" makes no
In addition, by the time the state sought his designation as a sexual predator, the Act had
again been amended, Ch. 2000-207, § 1, at 2052-53, Laws of Fla., this time to provide:
(a) For a current offense committed on or after October 1, 1993, upon
conviction, an offender shall be designated as a "sexual predator" . . . if:
1. The felony is:
a. A capital, life, or first-degree felony violation, or any attempt thereof,
of s. 787.01 or s. 787.02, where the victim is a minor and the defendant
is not the victim's parent, or of chapter 794, s. 800.04, or s. 847.0145,
or a violation of a similar law of another jurisdiction; or
b. Any felony violation, or any attempt thereof, of . . . s. 800.04.
. . .
§ 775.21(4)(a), Fla. Stat. (2000) (emphasis supplied). By the time appellant was designated
a sexual predator, the amended statute made each of his alleged offenses (retroactively)
qualifying.
9

provision for an individual to whom it applies to make a showing that his or her
employment poses no threat to public safety.5
Appellant contends6 that the Act's failure to afford an opportunity for
individuals meeting the statutory criteria for disqualification from employment to
present evidence that their employment would in fact pose no danger violates state and
federal procedural due process requirements.
The Fourteenth Amendment reads in part: "nor shall any
State deprive any person of life, liberty, or property,
without due process of law," and protects "the individual
against arbitrary action of government." We examine
procedural due process questions in two steps: the first
5 The Legislature amended the original Act in 1996, Ch. 96-388, § 61, at 2368, Laws
of Fla. (codified at § 775.21(3)(b)5., Fla. Stat. (Supp. 1996)), stating an intent to "[p]rohibit[]
sexual predators from working with children, either for compensation or as a volunteer," and
providing:
A sexual predator who has been convicted of or found to have
committed, or has pled nolo contendere or guilty to, regardless of
adjudication, any violation of s. 794.011(2), (3), (4), (5), or (8), s.
794.023, s. 800.04, s. 827.071, s. 847.0133, or s. 847.0145, or of a
similar law of another jurisdiction, when the victim of the offense was
a minor, and who works, whether for compensation or as a volunteer, at
any business, school, day care center, park, playground, or other place
where children regularly congregate, commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Ch. 96-388, § 61, at 2374, Laws of Fla. (originally codified at § 775.21(9)(b), Fla. Stat. (Supp.
1996), now codified at § 775.21(10)(b), Fla. Stat. (2002)).
6 Appellant argued in his initial brief that the Act creates an unconstitutional,
irrebuttable presumption that he is a public menace by automatically and irrevocably
designating him a sexual predator without any inquiry as to whether or not he poses a danger
to society in fact. In his supplemental brief, appellant argues that the Act violates procedural
due process with more specificity.
10

asks whether there exists a liberty or property interest which
has been interfered with by the State; the second examines
whether the procedures attendant upon that deprivation
were constitutionally sufficient.
Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 459-60 (1989) (citations
omitted). State due process requirements arise from Article I, section 9 of the Florida
Constitution, which provides, "No person shall be deprived of life, liberty or property
without due process of law . . . ."
The right to pursue a career has been held to be a liberty interest protected by
the Due Process Clause. See K.M.T. v. Dep't of Health & Rehab. Servs., 608 So.
2d 865, 869 (Fla. 1st DCA 1992) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923);
State ex rel. Fulton v. Ives, 167 So. 394, 399 (Fla. 1936)); see also Cummings v.
Missouri, 71 U. S. 277, 320, 327 (1867) (deeming disqualification from ordinary and
regular vocations punishment); Lane v. Chiles, 698 So. 2d 260, 264 (Fla. 1997)
(approving a lower court's conclusion that a "state regulation violates a protected
liberty interest if it completely interferes with the right to engage in a lawful
occupation"); Polakoff v. Dep't of Ins. & Treasurer, 551 So. 2d 1223, 1225 (Fla. 1st
DCA 1989) (stating that it is "well settled that . . . the right to engage in a lawful
business or occupation enjoys constitutional protection"). The decisions in Smith v.
Doe, 123 S.Ct. 1140 (2003) and Connecticut Dep't of Pub. Safety v. Doe, 123 S.Ct.
11

1160 (2003) are not to the contrary, and are readily distinguishable from the present
case.
The Smith court's opinion noted the dearth of evidence that the Alaska law
under consideration there "has led to substantial occupational . . . disadvantages for
former sexual offenders." Smith, 123 S.Ct. at 1151. In stark contrast, the Florida
Sexual Predators Act imposes substantial, lifetime occupational disabilities and
disadvantages as a matter of law.
The law at issue in the Connecticut case mandated nothing more than
dissemination of information already a matter of public record. The Connecticut law
required, moreover, a disclaimer stating that there had been "no determination that any
individual included in the registry is currently dangerous." Connecticut Dep't of Pub.
Safety, 123 S.Ct. at 1163. Again in stark contrast, the Florida Legislature declared,
as its rationale for prohibiting people in appellant's situation from working where
children regularly congregate, that they are "predators who present an extreme threat
to the public safety." Ch. 96-388, § 61, at 2367, Laws of Fla.
The Florida Constitution, no less than the federal constitution, protects the right
to earn a livelihood in a lawful occupation. See generally Lane, 698 So. 2d at 264
(approving rejection of the assertion that the net ban amendment deprived a challenger
of a due process liberty interest, in part because the ban did not completely prevent
12

fishermen from engaging in their chosen occupation); State ex rel. Hosack v. Yocum,
186 So. 448, 451 (Fla. 1939) ("The fundamental right to earn a livelihood in pursuing
some lawful occupation is protected by the Constitution, and in fact, many authorities
hold that the preservation of such right is one of the inherent or inalienable rights
protected by the Constitution."); Ex parte Powell, 70 So. 392, 396-97 (Fla. 1915)
(upholding a statute imposing license taxes on seafood dealers and fishing boat owners
because the statute reasonably regulated state waters and did "not purport to regulate
or to deny to any one the right to labor").
In addition to recognizing the general right to earn a livelihood, "various courts
have specifically recognized the ability to pursue employment in the child care field as
a constitutionally protected liberty interest." Dupuy v. McDonald, 141 F. Supp. 2d
1090, 1133 (N.D. Ill. 2001). While the right to work in one's chosen profession is not
absolute, it cannot be taken away without due process of law.
Included in the right of personal liberty and the right
to private property is the right to make contracts for the
acquisition of property. Chief among such contracts is that
of personal employment by which labor and other services
are exchanged for money or other forms of property. If that
right be stricken down or arbitrarily interfered with, there is
a substantial impairment of liberty in the long-established
constitutional sense. . . .
While it is undoubtedly true that it is within the power
of government to restrain some individuals from all
contracts and all individuals from some contracts, the truth
13

must not be ignored that a citizen's right to pursue any
lawful business is "property" and the right to contract for
personal services as a means for the acquisition of property
is one of the privileges of a citizen of the United States of
which he cannot be deprived without invading his right to
liberty. . . .
It is within the power of the Legislature to regulate
some occupations and not regulate others, but private rights
secured by the Constitution must not be invaded and the
regulations must operate with substantial fairness upon all
persons similarly situated.
State ex rel. Fulton, 167 So. at 399. Unlike the Act at issue in the present case, the
statute that specifically prescribes minimum standards for child care personnel, §
402.305(2)(a) & (b), Fla. Stat. (2002), would, while presumptively disqualifying
appellant as a child care worker, allow exemption from disqualification if he could
show
evidence of rehabilitation, including, but not limited to, the
circumstances surrounding the criminal incident for which
an exemption is sought, the time period that has elapsed
since the incident, the nature of the harm caused to the
victim, and the history of the employee since the incident,
or any other evidence or circumstances indicating that the
employee will not present a danger if continued employment
is allowed.
§ 435.07(3), Fla. Stat. (2002). See § 402.305(2)(b), Fla. Stat. (2002) ("The department
may grant exemptions from disqualification from working with children or the
14

developmentally disabled as provided in s. 435.07."). The Act at issue here permits
no exemptions from a much more severe disqualification.
No small part of the difficulty the present case poses arises from the fact that
appellant was not on notice, when he entered his plea, that he would lose the right to
work where children regularly congregate, even if he could show that he could do so
without threatening the public safety. This circumstance distinguishes the present case
from Milks v. State, 28 Fla. L. Weekly D1107 (Fla. 2d DCA, May 02, 2003) and
Freeland v. State, 832 So. 2d 923 (Fla. 1st DCA 2002).
Ordinarily, not even non-penal7 statutes can divest citizens of substantive rights
retroactively. See generally Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 312 n.8,
and 315-16 (1945); William Danzer & Co. v. Gulf & Ship Island R.R. Co., 268 U.S.
633, 637 (1925); State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).
For this reason, it "is a well established rule of statutory construction that, in the
7 Appellant proceeds on the explicit assumption that the Act is a civil, not a criminal,
statute, and that "sexual predator designation is not a sentence or punishment, but is a
regulatory act done for remedial purposes." State v. Colley, 744 So. 2d 1172, 1174 (Fla. 2d
DCA 1999). See Smith v. Doe, 123 S.Ct. 1140 (2003). Florida courts considering the issue
had all seemingly concluded that sexual predator "designation is neither a sentence nor a
punishment." Kelly v. State, 795 So. 2d 135, 138 (Fla. 5th DCA 2001). See Gonzalez v. State,
808 So. 2d 1265, 1266 (Fla. 3d DCA 2002) (rejecting appellant's argument that the Florida
Sexual Predators Act imposes punishment ex post facto); Rickman v. State, 714 So. 2d 538,
539 (Fla. 5th DCA 1998) (same); Collie v. State, 710 So. 2d 1000, 1009-11 (Fla. 2d DCA
1998) (same). For a discussion of the procedural consequences of this characterization, see
Nicholson v. State, 846 So. 2d 1217 (Fla. 5th DCA 2003).
15

absence of an express legislative statement to the contrary, an enactment that affects
substantive rights or creates new obligations or liabilities is presumed to apply
prospectively." Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla.
1996). This presumption does not arise here, however, because the Legislature made
clear its intention that the Act apply retrospectively (albeit only after appellant
committed his offenses) when it made the Act applicable to offenses occurring "on
or after October 1, 1993." § 775.21(4)(a), Fla. Stat. (2000).
Because a liberty interest warranting due process protection exists, however,
"the question is not whether the statutory scheme envisions making such an
individualized assessment, but whether the Due Process Clause requires it." Doe v.
Williams, 167 F. Supp. 2d 45, 59 (D.D.C. 2001).
If the legislation clearly expresses an intent that it apply
retroactively, then the second inquiry is whether retroactive
application is constitutionally permissible. See State Farm
Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995);
State Dep't of Transp. v. Knowles, 402 So.2d 1155, 1158
(Fla.1981); see also Arrow Air, Inc. v. Walsh, 645 So.2d
422, 425 n. 8 (Fla.1994).
Metro. Dade Co. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). At
issue is whether the state and federal constitutions require an opportunity for appellant
16

to make a showing,8 if he can, that his employment perhaps as french fry cook,
janitor, roofer or groundskeeper would not pose a threat to public safety.
Appellant's nolo contendere plea which might, after all, have been a plea of
convenience to charges of misconduct alleged to have taken place six years ago
should not deprive him of the opportunity "to show that he is not a danger to society
. . . , that he is married and a father, and that he is living a normal, productive life as
a citizen of Florida." Appellant's Supplemental Brief 6-7. "It is difficult to believe that
the Constitution grants greater protection from unfair retroactivity to property than to
human liberty." Stogner v. California, 123 S.Ct. 2446, 2460-61 (2003). The state and
federal due process clauses require that a person in appellant's position have an
opportunity to demonstrate that employment he might now otherwise lawfully
undertake would pose no threat to public safety.
"The statute before us is unfairly retroactive as applied to" appellant. Id. at
2461. To the extent the Act deprives him of a whole spectrum of employment
opportunities and does so for life without affording him a chance to show that he
8 In Espindola v. State, 2003 WL 22399573, at *5-6 (Fla. 3d DCA, Oct. 22, 2003), the
Third District held that such an opportunity is constitutionally required, without regard to
retroactivity. The Fourth District held to the contrary in Reyes v.State, 28 Fla. L. Weekly
D2131, D2131 (Fla. 4th DCA Sept. 10, 2003). See also White v. State, 2003 WL 22399730,
at *1 (Fla. 4th DCA Oct. 22, 2003) (following Reyes); Luda v. State, 2003 WL 22336133, at
*1 (Fla. 4th DCA Oct. 15, 2003) (same); Jones v. State, 2003 WL 22298711, at *1 (Fla. 4th
DCA Oct. 8, 2003) (same); Carver v. State, 854 So. 2d 272, 272 (Fla. 4th DCA 2003) (same).
17

can safely be allowed to work, the Act is unconstitutional as state action that denies
procedural due process guaranteed by both the state and federal constitutions.
18

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