Freeze v. State , 861 So. 2d 1234 ( 2003 )

861 So.2d 1234 (2003)

Terry FREEZE, Appellant,
v.
STATE of Florida, Appellee.

No. 2D01-2021.

District Court of Appeal of Florida, Second District.

December 12, 2003.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald and Jennifer R. Haymes, Assistant Attorneys General, Tampa, for Appellee.

KELLY, Judge.

Terry Freeze appeals from the order finding him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999), the "Jimmy Ryce Act." We affirm the commitment order based on Westerheide v. State, 831 So.2d 93 (Fla.2002). However, because Freeze argues that the trial court erred in failing to instruct the jury that the State was required to prove that he has serious difficulty in controlling his behavior, we certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

NORTHCUTT and STRINGER, JJ., concur.