FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3358
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JASON NICHOLAS FRANDI,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.
April 20, 2018
WETHERELL, J.
Appellant entered a negotiated plea to and was adjudicated
guilty of 19 counts of possession of child pornography in violation
of section 827.071, Florida Statutes (2016). He was sentenced to
an aggregate term of 25 years in prison followed by a total of 25
years of sex offender probation, and he was also designated a
sexual predator pursuant to section 775.21(4)(a)1.b. On appeal,
after his appointed counsel filed an Anders 1 brief, Appellant filed
a pro se brief arguing that the trial court erred in designating
him a sexual predator because he had only been adjudicated
delinquent—and not convicted—of a prior sex offense.
1 Anders v. California,
386 U.S. 738 (1967).
We affirm the sexual predator designation because Appellant
failed to preserve this issue for appeal. He did not present the
argument raised in his pro se brief to the trial court, either at the
sentencing hearing or in a rule 3.800(b)(2) motion, and he cannot
raise the issue for the first time on appeal. See Brannon v. State,
850 So. 2d 452, 456 (Fla. 2003).
Even if the issue had been preserved, it is meritless for two
reasons.
First, the record shows that Appellant specifically agreed to
the sexual predator designation as part of the negotiated plea
agreement. Because this designation is not a sentence or a
punishment, Appellant was not precluded from agreeing to the
designation even if he did not qualify under the statute. See
Kingry v. State,
28 So. 3d 173, 174 (Fla. 1st DCA 2010). And,
because Appellant has received the benefits of the plea
agreement, 2 he cannot now seek to be relieved of one of the
burdens imposed on him by the agreement.
Id.
Second, in order to be designated a sexual predator pursuant
to section 775.21(4)(a)1.b., the defendant must be “convicted” of a
current offense that is a felony violation of an enumerated statute
(such as section 827.071), and the defendant must also have
previously “been convicted of or found to have committed” a
violation of one of those enumerated statutes. Although an
adjudication of delinquency does not qualify as a conviction for
purposes of the current offense, see State v. J.M.,
824 So. 2d 105
(Fla. 2002), it does qualify for purposes of the prior offense
because section 775.21(4)(b) unequivocally states that “[i]n order
to be counted as a prior felony for purposes of this subsection, the
felony must have resulted in a conviction sentenced separately, or
an adjudication of delinquency entered separately, prior to the
current offense . . .” (emphasis added). Here, Appellant was
convicted—not adjudicated delinquent—of a current offense
enumerated in section 775.21(4)(a)1.b., and although the record
does not reflect the specific prior offense for which he was
2 For example, the 25-year prison sentence Appellant
received pursuant to the agreement is far less than the maximum
potential sentence of 135 years that he was facing.
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adjudicated delinquent, 3 Appellant has not argued—below or on
appeal—that the prior offense was not a violation of one of the
statutes enumerated in section 775.21(4)(a)1.b. Accordingly, the
trial court properly designated Appellant a sexual predator.
AFFIRMED.
WOLF and ROBERTS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Bruce A. Miller, Public Defender, and Travis R. Gates, Assistant
Public Defender, Shalimar; Andy Thomas, Public Defender, and
Steven L. Seliger, Assistant Public Defender, Tallahassee, for
Appellant; Jason Nicholas Frandi, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
3 The record does not contain a copy of the judgement and
sentence for the prior offense, and at the sentencing hearing, the
prosecutor merely stated that Appellant “has a prior sex
conviction.” Likewise, in his pro se brief, Appellant only refers to
the offense as a “sexual offense” for which he was “adjudicated as
a juvenile delinquent” in 1999. However, the order designating
Appellant as a sexual predator states that Appellant “has
previously been convicted or found to have committed . . . any
violation of s. 800.04,” and section 800.04 is one of the statutes
enumerated in section 775.21(4)(a)1.b.
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