DocketNumber: Case No. 5D18-2206
Citation Numbers: 272 So. 3d 808
Judges: Evander
Filed Date: 5/10/2019
Status: Precedential
Modified Date: 7/29/2022
Brian K. McKenzie appeals an order designating him as a sexual predator under section 775.21, Florida Statutes (2018). The order was entered after McKenzie had completed his sentence. We conclude that the trial court lacked jurisdiction to enter *809the order and, accordingly, reverse. In doing so, we certify conflict with Cuevas v. State ,
On October 28, 2009, McKenzie entered a nolo contendere plea to one count of engaging in sexual activity with a child while in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2009). Pursuant to a negotiated plea agreement, McKenzie was sentenced to six months' incarceration, followed by three years of sex offender community control, followed by two years of sex offender probation. The trial court further found that McKenzie qualified as a sex offender.
McKenzie served his jail time and successfully completed his community control and probation. The sentence was completed in April 2015, and McKenzie was notified by the Department of Corrections that he was no longer under supervision.
Three years later, the State filed a notice with the trial court, requesting that McKenzie be designated a sexual predator. After a hearing, and over McKenzie's objection, the trial court entered an order designating McKenzie a sexual predator and ordering him to comply with the registration requirements set forth in section 775.21, Florida Statutes (2018). At the time the trial court entered its order, Cuevas was the only Florida appellate court opinion directly addressing the issue of whether a sexual predator designation order may be entered after a defendant has completed his sentence. The trial court appropriately relied on Cuevas in entering its order. See Pardo v. State ,
Section 775.21(4)(a), Florida Statutes, provides that a sexual offender who qualifies as a sexual predator "shall be designated as a 'sexual predator' ... and subject to registration ... and community and public notification." This provision means "that the trial court has no discretion to do otherwise." Kelly v. State ,
The issue on appeal is whether the trial court had jurisdiction to designate McKenzie as a sexual predator where he had not been so designated at sentencing and where the State had not sought such designation prior to McKenzie completing his sentence.
*810"Subject matter jurisdiction is the 'power of a particular court to hear the type of case that is then before it' or 'jurisdiction over the nature of the cause of action and relief sought.' " Carbajal v. State ,
Here, it is undisputed that McKenzie's 2009 offense qualified him as a sexual predator and that had he been so designated at the time of sentencing, the designation would have been lawful. However, as discussed above, the felony division court no longer had jurisdiction over McKenzie's case because he had completed his sentence. See, e.g. , Almond ,
Before addressing section 775.21(5)(c), it is first necessary to discuss section 775.21(5)(a). That statute references three types of proceedings in which a trial court is to designate an otherwise qualified offender to be a sexual predator. Subsection 775.21(5)(a)1. sets forth the procedure to be followed when an offender is determined to be a sexually violent predator pursuant to a civil commitment proceeding under Chapter 394. Subsection 775.21(5)(a)2. sets forth the procedure to be followed when an offender is before the court for sentencing. Subsection 775.21(5)(a)3. sets forth the procedure to be followed when the offender was civilly committed or committed a similar criminal sexual offense in another jurisdiction, but has established or maintained a permanent, temporary, or transient residence in Florida. McKenzie was an offender who should have been, but was not, designated as a sexual predator at the time of sentencing. § 775.21(5)(a) 2., Fla. Stat. (2009).
Section 775.21(5)(c), the section relied upon by the State to confer jurisdiction, provides, in relevant part, as follows:
If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in subparagraph (a)1., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)3. The state attorney shall bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria.
Notably, this section references subsections (5)(a)1. and (5)(a)3., but fails to reference subsection (5)(a)2.-the subsection applicable to McKenzie.
*811In Cuevas , the majority concluded that the failure of section (5)(c) to reference subsection (5)(a)2. did not mean that the State could not seek a belated designation of an individual who had not been so designated at sentencing, notwithstanding the fact that the defendant had completed his sentence:
A careful reading of the special language applicable to the two categories ( section 775.21(5)(a) 1. and 3.) reveals that those are special notice and venue rules for those special cases, not exclusive descriptions of the only circumstances in which the State can perform its duty after the defendant is sentenced.
Cuevas ,
In his dissent, Judge Shepherd argued that based on its plain language, section (5)(c) did not provide a "recapture" provision for offenders described in subsection (5)(a)2.
However, [ section 775.21(5)(c) ] ... is inapplicable on its face because subparagraph (a)1 pertains only to offenders who have been civilly committed under the Jimmy Ryce Act, § 394.910, Fla. Stat. (2000), and subparagraph (a)3 pertains to persons who have committed a similar violation in another jurisdiction. By its terms, this subsection does not include offenders described in section 775.21(a) 2, the category in which Cuevas falls.
We agree with the rationale set forth in Judge Shepherd's dissent. As Judge Shepherd aptly noted, "we must apply the law we have, not the law we wish we had."
REVERSED and REMANDED; CONFLICT CERTIFIED.
ORFINGER and EDWARDS, JJ., concur.
Individuals designated as sex offenders are required to comply with the registration requirements set forth in section 943.0435, Florida Statutes.