Florida Criminal Law Opinions

GREGORY D. MILLER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-10

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Alicia Latimore, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   ORFINGER, J. MONACO and TORPY, JJ., concur.

OPINION BY:   ORFINGER

OPINION  

ORFINGER, J.

Gregory D. Miller appeals an order denying his motion to dismiss an information charging him with one count of failure of sexual offender to report in person at a driver’s license office in violation of section 943.0435(9) and (3), Florida Statutes (2006). On appeal, Mr. Miller argues that the statute violates his right to equal protection by requiring him to register with the Florida Sex Offender Registry as a result of an offense he committed in West Virginia in 1994, while exempting similarly-situated Florida sex offenders from the registration requirement. For the reasons that follow, we affirm.

In 1994, Mr. Miller was convicted of a sex crime in West Virginia and designated a sex offender. He was sentenced to prison and released in 1996. Mr. Miller was required to register as a sex offender in West Virginia. Following  [*2]  a move to Florida, Mr. Miller was advised by law enforcement of his registration obligation. After several months passed and Mr. Miller failed to register, he was charged with failing to report as a sex offender at a driver’s license office, in violation of sections 943.0435(9) and (3), Florida Statutes. Mr. Miller moved to dismiss the information on the ground that section 943.0435 was unconstitutional as applied to him, alleging that the statute treated similarly-situated sex offenders differently. After the denial of his motion to dismiss, Mr. Miller pled no contest to the charge, reserving the right to appeal the denial of his dispositive motion to dismiss. This appeal followed.

A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA 1998); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle, 600 So. 2d 1236, 1239 (Fla. 1st DCA 1992).

In  [*3]  this appeal, Mr. Miller seeks our review of his constitutional challenge to section 943.0435(1), Florida Statutes. We review the constitutionality of this statute de novo, as it presents a pure question of law. Dep’t of Ins. v. Keys Title & Abstract Co., 741 So. 2d 599, 601 (Fla. 1st DCA 1999). Further, because there is a strong presumption that statutes are constitutionally valid, see City of Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002), we are obligated to interpret the statute in a manner so as to uphold its constitutionality if it is reasonably possible to do so. Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993).

The equal protection clause of the United States Constitution provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1; see also Art. I, § 2, Fla. Const. (stating that “[a]ll natural persons are equal before the law . . .”). Mr. Miller concedes that we analyze the constitutionality of section 943.0435 using the rational relationship test because it does not impair a fundamental right or affect a suspect class of persons. Turner v. State, 937 So. 2d 1184, 1185 (Fla. 5th DCA 2006)  [*4]  (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005)). Under this test, a court will uphold a statute if the classification bears a rational relationship to a legitimate governmental objective. See Zapo v. Gilreath, 779 So. 2d 651, 655 (Fla. 5th DCA 2001); Keys Title, 741 So. 2d at 602; see also Pennell v. City of San Jose, 485 U.S. 1 (1988). “It would be proper to sustain an equal protection challenge to a statute only if ‘the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.’” Keys Title, 741 So. 2d at 602 (quoting N. Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461, 465 (Fla. 1979)). However, a statutory classification will be found to violate equal protection if it treats similarly-situated people in a different manner based upon an illogical and arbitrary basis. See McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA 1998). Hence, in arguing that section 943.0435(1)(a), Florida Statutes, as applied, is discriminatory, Mr. Miller must show (1) that he was treated differently under the  [*5]  law from similarly-situated persons, (2) that the statute intentionally discriminates against him, and (3) that there was no rational basis for the discrimination. See id.

We believe Mr. Miller misreads the statute. The statute does not treat him differently from similarly-situated persons. In 1997, Florida enacted section 943.0435, its sexual offender registration statute. Ch. 97-299, § 8, Laws of Fla., eff. Oct. 1, 1997. Prior to the enactment of that statute, Florida had no sex offender registration requirement. Section 943.0435(1)(a) defines a “sexual offender” as a person convicted of committing specified sexual offenses in Florida or similar offenses in another jurisdiction. Additionally, those offenders who meet the criteria set forth in subparagraphs 1, 2, or 3 of the statute also fall within its scope. In pertinent part, the applicable version of the statute requires:

943.0435. Sexual offenders required to register with the department; penalty

(1) As used in this section, the term:

(a) “Sexual offender” means a person who meets the criteria in subparagraph 1., subparagraph 2., or subparagraph 3., as follows:

1. a. Has been convicted of committing, or attempting, soliciting, or  [*6]  conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-subparagraph; and

b. Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-subparagraph a. For purposes of sub-subparagraph a., a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility;

2. Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court  [*7]  of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender . . . .§ 943.0435(1)(a)1.-2., Fla. Stat. (2006) (footnote omitted; emphasis added). n1

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As Mr. Miller was not under any supervision related to his West Virginia conviction, subparagraph 3 does not apply. See § 943.0435(1)(a)3., Fla. Stat. (2006).
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Contrary to Mr. Miller’s argument, section 943.0435(1)(a)1. and 2. does not treat in-state and out-of-state sexual offenders differently. Under subparagraph 1, any person is treated as a sexual offender in Florida if he or she (1) has been convicted of committing specified sexual offenses in Florida or in another jurisdiction and (2) was released from the sanction imposed for the conviction on or after October 1, 1997. § 943.0435(1)(a)1.a.-b., Fla. Stat. (2006); see McCoy v. State, 935 So. 2d 1278, 1279 (Fla. 4th DCA 2006)  [*8]  (stating that this section applies to offenders released from sanction for a qualifying offense on or after October 1, 1997). Thus, contrary to Mr. Miller’s position, both Florida sex offenders and non-Florida sex offenders who committed specified sexual offenses and were released before October 1, 1997, are exempt under this section of the statute.

The statute also provides an alternative provision by which an individual could be defined as a sexual offender. Under subparagraph 2, a person who has been designated a sexual offender by another state must register in this state if that person establishes or maintains a residence in the state of Florida regardless of the date of conviction or release. § 943.0435(1)(a)2., Fla. Stat. (2006). Once again, under this subparagraph, similarly-situated offenders are treated similarly under the law, i.e., regardless of date of conviction or release, offenders who move to Florida, as well as offenders who have been living in Florida must register in Florida if they were required to register in another state. As Mr. Miller was required to register in West Virginia, he was subject to this subparagraph of the statute when he remained in Florida for  [*9]  more than five days. See § 943.0435(1)(c), Fla. Stat. (2006) (stating that “‘[p]ermanent residence’ and ‘temporary residence’ have the same meaning ascribed in s. 775.21″); § 775.21(2)(f)&(g), Fla. Stat. (2006) (defining “[p]ermanent residence” under the sexual predator act as “a place where the person abides, lodges, or resides for 5 or more consecutive days” and “[t]emporary residence” as “a place where the person abides, lodges, or resides for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state”); see also McCoy, 935 So. 2d at 1279-80 (holding that because defendant was released from incarceration for a qualifying sexual offense on January 3, 1997, he was required to register under 943.0435(1)(a)3., Florida Statutes (2002) (now section 943.0435(1)(a)2.), because if he lived in Colorado, he would be required to register as a sex offender). Mr. Miller was treated the same as other similarly-situated sex offenders, moving into Florida  [*10]  or already living in Florida, who are required to register in other states. Thus, he has not shown that section 943.0435 treats him differently from any other similarly-situated sexual offender, or that it intentionally discriminates against him.

Lastly, as this Court recognized in Turner, the Legislature has a rational basis to include in its definition of “sexual offender,” Florida residents who have been designated sexual offenders by another state. n2 937 So. 2d at 1185. Accord Moore, 410 F.3d 1337 (holding that Florida’s various classifications and sub-classifications under section 943.0435, Florida Statutes, were rationally related to a legitimate governmental purpose; budgetary concerns are a legitimate governmental interest); State v. Subido, 925 So. 2d 1052, 1060 (Fla. 5th DCA 2006) (citing Moore in support of conclusion that registration requirement of section 943.0435 is constitutional); Hanson v. State, 905 So. 2d 1036 (Fla. 5th DCA 2005) (adopting and applying the federal court’s substantive due process analysis in Moore to the Sexual Predator Act, section 775.21).

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For this reason, Mr. Miller’s reliance on Idaho v. Dickerson, 129 P.3d 1263 (Idaho Ct. App. 2006) (holding  [*11]  that former version of state’s sex offender registration and notification act violated defendant’s right to travel, and finding that state’s interest in apprehending re-offending sex offenders were not rationally advanced by classification that differentiated between offenders based solely on their date of entry into state), and ACLU of New Mexico v. City of Albuquerque, 137 P.3d 1215 (N.M. Ct. App. 2006) (holding that registration requirements for out-of-state sexual offenders in city’s sex offender registration and notification act resulted in differing treatment for resident and non-resident sex offenders that was not rationally related to city’s interest in protecting citizens from sex offenders, and, therefore, violated equal protection clause; provisions did not require registration of those convicted sex offenders who were most likely to have means and opportunity to reoffend in city, yet, those offenders who were convicted outside the state, who resided out-of-state, and were in city only a limited number of days, had to register), is misplaced.
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For these reasons, we conclude that the challenged statute (1) applies to all similarly-situated persons; (2) does not intentionally  [*12]  discriminate against Mr. Miller alone; and (3) passes a rational basis scrutiny. Accordingly, we conclude that section 943.0435, Florida Statutes, does not offend equal protection.

AFFIRMED.

MONACO and TORPY, JJ., concur.

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GILBERTO LUGO, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D06-3720

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Frank N. Kaney, Senior Judge.

COUNSEL:   James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   LAWSON, J. THOMPSON and TORPY, JJ., concur.

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

Gilberto Lugo appeals from his judgment and thirty-year sentence on the charge of lewd or lascivious molestation (child under age 12). We affirm the conviction and sentence. Only one issue was preserved for appellate review, and we will briefly address that issue.

At trial, the father of the victim testified that he basically caught Lugo molesting his child. However, when the State called the victim to testify, she began crying when asked about the incident, and could not answer questions because of her emotional state. Additionally, the prosecutor did not attempt to offer the child’s out-of-court statements confirming the sexual abuse. As its last witness, however, the prosecutor called a child protection team (”CPT”) interviewer, and asked about out-of-court answers given by the child that would tend to show that  [*2]  the victim could accurately relate to others matters that she had personally observed, and that she understood what it meant to be truthful. These were standard questions, such as asking the child to describe the color of an object, and then confirming that the child understood that it would not be truthful to say that the object was a different color. The only alleged error preserved for appellate review is the admission of this testimony over the defense’s hearsay objection. As the prosecutor argued at trial, and the trial court found, this testimony did not involve hearsay because the child’s out-of-court statements were not being offered to prove the truth of the matters asserted in the child’s responses to the questions posed. See § 90.801(1)(c), Fla. Stat. (2006). Rather, the child’s responses were offered to show that the child could accurately relate to others matters that she personally observed.

Under the circumstances, however, the testimony may have been objectionable on other grounds. Because the jury heard no testimony from the child, hearsay or otherwise, relating to any fact in dispute at trial, the child’s ability to accurately explain things that she observed would  [*3]  appear irrelevant. However, because the only objection made at trial was a hearsay objection, and the trial court correctly sustained that objection, there is no basis for appellate relief. See, e.g., Pope v. State, 646 So. 2d 827, 828 (Fla. 5th DCA 1994). Because the other errors alleged in Lugo’s brief were not objected to at trial either, and do no constitute fundamental error, we must affirm. Carratelli v. State, 961 So. 2d 312, 325 (Fla. 2007). If a remedy exists at all, it will be through appropriate postconviction proceedings.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

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ALAN B. HEPFER, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3069

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lee County; Lynn Gerald, Jr., Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. CANADY and WALLACE, JJ., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Alan B. Hepfer, Jr., appeals his convictions and sentences for two counts of attempted second-degree murder with discharge of a firearm, burglary of a structure while armed, grand theft, and use of a firearm in the commission of a felony (designated as count V). We reverse the conviction and sentence for count V and remand for the trial court to correct errors contained in the written judgment and sentences. We affirm in all other respects.

At a bench trial, the State established that Hepfer and a friend had burglarized a day-care center and then left. Police officers responded to the burglary scene and investigated for over an hour. Hepfer and his friend returned to the scene while the officers were still there. One officer observed Hepfer with a gun and ordered him to drop it. Hepfer and his friend fled, and the officer  [*2]  pursued them toward a wooded area. Hepfer shot at the officer, and then when another officer arrived, Hepfer fired another shot.

At the conclusion of the trial, the trial court found Hepfer guilty of the two attempted murders with discharge of a firearm and grand theft. The court also found Hepfer guilty of burglary of a structure but concluded that the State failed to establish beyond a reasonable doubt that Hepfer was armed when he committed the burglary. Finally, the court did not find Hepfer guilty of count V, the separate charge of use of a firearm in the commission of a felony. The written judgment and sentences are inconsistent with the trial court’s pronouncements as they reflect a conviction for burglary of a structure while armed and a conviction and sentence as to count V concerning the firearm.

Although Hepfer filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court failed to rule on the motion within sixty days. Thus, the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B); Jones v. State, 898 So. 2d 209, 210 (Fla. 2d DCA 2005). The State properly concedes that the written judgment and sentences do not conform  [*3]  to the trial court’s oral pronouncement. See Driver v. State, 710 So. 2d 652, 653 (Fla. 2d DCA 1998) (”When a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls.”). Accordingly, we reverse the conviction on count V and remand for the trial court to enter a corrected judgment and sentence eliminating that count. On remand, the trial court shall also correct the judgment to eliminate the “while armed” language with respect to Hepfer’s conviction for burglary of a structure. The sentence remains unchanged as to the burglary conviction because the trial court pronounced a sentence of five years’ imprisonment and the written sentence conforms to the oral pronouncement.

Affirmed in part, reversed in part, and remanded.

CANADY and WALLACE, JJ., Concur.

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ZAYED EID BAKHEET ALMAZROUEI, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 5D07-4043

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

COUNSEL:    [*1]  Jack Fernandez, Marcos E. Hasbun, and Maegen Luka, of Zuckerman Spaeder LLP, Tampa, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.

JUDGES:   PALMER, C.J., THOMPSON and MONACO, JJ., concur.

OPINION  

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

PER CURIAM.

The Petitioner has been charged with three counts of battery on a law enforcement officer, two counts of resisting with violence, one count of criminal mischief, a misdemeanor, and one count misdemeanor DUI. After a hearing, the trial court denied bond. Petitioner asserts that the trial court ignored section 907.041(4)(a), Florida Statutes (2006), asserting that none of the crimes charged constitute a “dangerous crime,” and the Petitioner does not meet the criteria for section 907.041(4)(c), Florida Statutes (2006). We agree that bond with sufficient conditions is warranted in this case. By previous order, the petition for writ of habeas corpus has been granted and the matter of bond remanded to the trial court, with this opinion to follow.

The testimony and evidence submitted below shows that the State did not file a motion for pre-trial  [*2]  detention, pursuant to Florida Rule of Criminal Procedure 3.132(a)(2007). n1 It is undisputed that the crimes charged do not constitute “dangerous crimes,” which would fall under section 907.041(4)(a) and it was not established that the Petitioner meets the criteria for section 907.041(4)(c). In addition, unrefuted testimony was presented that there are sufficiently stringent conditions of bond available to protect the public, as well as to assure the appearance of the Petitioner at future proceedings for the offenses charged.

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At the bond hearing, the State agreed that since the charged violations were not life felonies, it was their understanding that bond would have to be set. However, the State argued that the Appellant’s behavior concerned them and requested that the court make the conditions of bond “sufficiently stringent” to ensure the protection of the public.
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The petition is granted, and the order is quashed, with the matter of bond remanded to the trial court for a hearing to set the conditions for pretrial release.

PETITION GRANTED.

PALMER, C.J., THOMPSON and MONACO, JJ., concur.

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JOHN G. WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-260

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; Crockett Farnell, Judge.

COUNSEL:   John G. Williams, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   ALTENBERND, Judge. STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

John G. Williams appeals an order denying his motion seeking belated postconviction relief based upon allegations that he retained counsel to file a timely motion but that counsel failed to do so. See Fla. R. Crim. P. 3.850(b)(3). We affirm.

In two separate cases, Mr. Williams was convicted of first-degree murder and rape. Mr. Williams was sentenced to life imprisonment for the murder. For the rape, however, which occurred in 1969, Mr. Williams was sentenced to death. Shortly after the judgments and sentences became final in this case, Mr. Williams, with the assistance of his parents, retained an attorney.

Mr. Williams’ belated motion for postconviction relief alleged that the attorney was retained to seek postconviction relief but never did so. n1 At the evidentiary hearing on this claim, however, it was undisputed that the attorney was retained generally to do whatever  [*2]  he might deem appropriate to save Mr. Williams from the death penalty–he was not expressly retained for the purposes of seeking general postconviction relief. Counsel testified at the hearing that based upon these instructions, he explored all available options and decided the best course of action was to pursue clemency, which he did. Although the clemency petition was unsuccessful, Williams was thereafter spared the death penalty pursuant to Furman v. Georgia, 408 U.S. 238 (1972). See In re Baker, 267 So. 2d 331, 333 n.3 (Fla. 1972). Based upon this evidence, the postconviction court correctly concluded that Mr. Williams had not established a claim for belated postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3) because he had not presented evidence that he or his parents retained counsel specifically for the purposes of filing a postconviction motion, nor that counsel thereafter, through neglect, failed to file such a motion.

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At the time, postconviction relief was available by way of Florida Rule of Criminal Procedure 1.850. See In re Florida Rules of Criminal Procedure, 196 So. 2d 124 (Fla. 1967).
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On appeal, Mr. Williams complains generally that he  [*3]  now has information, unknown to him when he filed his motion, suggesting that counsel was ineffective in evaluating the options available and pursuing only a one-page petition for clemency. Even if that were the case, however, Mr. Williams would have no claim. Florida courts do not recognize claims for ineffective assistance of postconviction counsel. See Waterhouse v. State, 792 So. 2d 1176, 1193 (Fla. 2001). The order denying belated postconviction relief is therefore affirmed.

Affirmed.

STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

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