source: Caselaw Access Project

author: CANTERO, J. WELLS, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Leon ROBINSON, Appellee.
    No. SC01-2620.
    Supreme Court of Florida.
    March 18, 2004.
    Rehearing Denied May 13, 2004.

      Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and James J. Carney, Assistant Attorney General, West Palm Beach, FL, for Appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellee.
   CANTERO, J.

We review a decision of a district court of appeal declaring invalid the Florida Sexual Predators Act as applied to a defendant whose crime admittedly did not include a sexual component. See Robinson v. State, 804 So.2d 451 (Fla. 4th DCA 2001). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. See also State v. Iacovone, 660 So.2d 1371, 1372 (Fla.1995) (reviewing under article V, section 3(b)(1) a district court decision holding a statute unconstitutional as applied); Psychiatric Assocs. v. Siegel, 610 So.2d 419, 421-23 (Fla.1992) (same). For the reasons explained below, we hold that the Act, which requires certain defendants to register as sexual predators and limits their employment opportunities, is unconstitutional as applied to a defendant whose crime indisputably did not contain a sexual element. We therefore affirm the decision of the district court, but on different grounds.

I. THE FACTS AND HISTORY OF THE CASE

When the vehicle in which Appellee, Leon Robinson, and a companion were riding ran out, of gas, they began to walk. Shortly thereafter, Robinson’s companion saw , an opportunity to steal a car, and he did so — even though he saw a baby.in the back ■ seat. When Robinson entered the car moments later, he noticed the baby. Shortly after stealing the car, Robinson left the child, still sitting in her car seat, in front of a doctor’s office. Robinson was convicted of carjacking and -kidnapping. He received two life sentences, which are not at, issue here.

On the State’s motion,, the trial court held a hearing under section 775.21, Florida Statutes (Supp.1998) .(the Florida Sexual Predators Act (Act)) to determine whether Robinson should be designated a “sexual predator.” Although the State conceded “that Robinson, in committing the crimes, had not engaged in any sexual act upon or in- the presence of the child,” 804 So.2d at 452, the circuit court nevertheless concluded that the “sexual predator” designation was mandatory because Robinson had been convicted of kidnapping a minor of whom he was not the parent. See § 775.2-l(4)(c), Fla. Stat. (Supp.1998). Robinson argued that in light of the elements of the crime of kidnapping, the nature of the crime, and the conceded facts of the case, he did ■ not qualify as a sexual predator and thus his automatic designation was unconstitutional.

On appeal, the Fourth District Court of Appeal concluded that' Robinson’s designation as a sexual predator was mandatory, but held the statute unconstitutional as applied to his circumstances. 804 So.2d at 452. The district court found that the statute was overinclusive as applied to Robinson and did not pass the rational relationship test: ,

While the statute may have been based on the premise that providing the community with relevant information .about certain types of offenders was a reasonable way to help them protect themselves and their children, we hold that the language used goes, beyond that purpose when applied in this case. Designating a person such as Robinson as a sexual predator when there is no sexual element to his crime would lead to an absurd ‘ result. The legislature could have achieved the same remedial goals, for example, by patterning section 775.21 after the federal standard and, thus, specifically targeting those defendants who commit crimes against children regardless of any sexual element. By instead pigeonholing defendants such as Robinson into the same category as sexual predators, it has effectively subjected them to an unwarranted stigma. This is not only unjust, it is legally unsound. Accordingly, we reverse the designation.

Id. at 453 (footnote omitted). The court declared the statute unconstitutional as applied. Although the court did not indicate the constitutional ground for its' decision, it appeared to base its analysis on the Equal Protection Clause because it noted that “kidnappers such as Robinson are not a part of a suspect or quasi-suspect class.” Id. at 453 (citing F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). The State now appeals in this Court.

II. ROBINSON’S STANDING

The State first contends that Robinson lacked standing to challenge the trial court’s order. We reject this argument. The district court had jurisdiction to review the order under Florida Rule of Appellate Procedure 9.140(b)(1)(C), which grants appellate jurisdiction over criminal court orders “entered after final judgment or finding of guilt.” See also art. V, § 4(b)(1), Fla. Const, (granting district courts authority to review interlocutory orders to the extent provided by rules of the Supreme Court). The designation of an offender as a sexual predator is based on the offender’s conviction for one of the crimes specified in the Act. § 775.21(4)(c), Fla. Stat. (Supp.1998). The order designating a defendant a sexual predator is thus entered after final judgment or a finding of guilt. See Thomas v. State, 716 So.2d 789 (Fla. 4th DCA 1997) (holding that an order designating a defendant a sexual predator was “entered after defendant was convicted and sentenced” and “is therefore appealable as an order entered after a ‘finding of guilt,’ pursuant to rule 9.140(b)(1)(C)”); Downs v. State, 700 So.2d 789 (Fla. 2d DCA 1997) (same). Because Robinson was designated a sexual offender under the Act and subjected to its requirements, he had standing to challenge the trial court’s order.

III. CONSTITUTIONALITY OF THE ACT AS APPLIED

We now consider the constitutionality of the Act. Robinson does not argue that the Act is facially unconstitutional. Rather, he argues that the Act is unconstitutional as applied to him. Specifically, he disputes his automatic designation as a sexual predator despite the admitted lack of any sexual component to his crime and the lack of a sexual motivation. The district court agreed, holding that the statute was overinclusive “as it covers offenses that do not involve nor require sexual contact.” 804 So.2d at 452-53.

Although not entirely clear, the district court seemed to employ an equal protection analysis. See 804 So.2d at 453 (noting that kidnappers are not part of a suspect class). Robinson’s argument in this Court is also based on the Equal Protection Clause. We believe, however, that the issue is more properly analyzed as one concerning due process. As we explained in Westerheide v. State, 831 So.2d 93 (Fla.2002), “the equal protection clause is only concerned with whether the classification pursuant to a particular legislative enactment is properly drawn. Procedural due process is the constitutional guarantee involved with a determination of whether a specific individual is placed within a classification.” Id. at 110-11; see also 16B Am. Jur.2d Constitutional Law § 789 (1998) (stating that although due process and equal protection claims “may overlap and a violation of one may at times involve the violation of the other, the spheres of protection they offer are not coterminous”). It is the Due Process Clause that protects the individual against the arbitrary and unreasonable exercise of governmental power. See County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see also State v. Walker, 444 So.2d 1137, 1139 (Fla. 2d DCA) (noting that “the basic principle of substantive due process is to protect the individual from an abusive exercise of governmental powers”), ajfd, 461 So.2d 108, 108 (Fla.1984) (“adopt[ing] the opinion of Judge Grimes”). Robinson does not' contest the classification of some individuals as sexual predators; he simply argues that he does not belong within the classification. His argument therefore raises a due process claim.

A. The Requirements of the Act

We first review the Act under which Robinson was designated a sexual predator. The Florida statute, entitled the Florida Sexual Predators Act, is similar to many “Megan’s Laws” , enacted in virtually every state. The statute contains a statement of its findings and intent. They include the following:

(a)Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy....
(c) The state has a compelling interest in protecting the public from sexual predators and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual predators to register and for requiring community and public notification of the presence of sexual predators.

§ 775.21(3), Fla. Stat. (Supp.1998) (emphasis added). These findings clearly express the Act’s purpose of protecting the public, and especially children, from predatory sexual activity.

In light of these findings, the Legislature created categories of crimes and required that those who commit these enumerated crimes must be designated sexual predators:

(c) For a current offense committed on or after October 1, 1996, upon conviction, an offender shall be designated as a “sexual predator” under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:
1. The felony meets the criteria of former ss. 775.22(2) and 775.28(2), specifically, the felony is:
a. A capital, life, or first-degree felony violation of s. 787.01 [kidnapping] or s. 787.02 [false imprisonment], where the victim is a minor and the defendant is not the victim’s parent, or of chapter 794 [sexual battery] or s. 847.0145 [selling/buying minors], or a violation of a similar law of another jurisdiction;
b. 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; or
c. Any second-degree or greater felony violation of s. 787.01 [kidnapping] or s. 787.02 [false imprisonment], where the victim is a minor and the defendant is not the victim’s parent; chapter 794 [sexual battery]; s. 796.03; s. 800.04 [lewdness]; s. 825.1025(2)(b); s. 827.071 [sexual performance of a child]; or s. 847.0145; or a violation of a similar law of another jurisdiction, 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. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim’s parent; s. 794.011(2), (3), (4), (5), or (8); s. 794.023; s. 796.03; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; or s. 847.0145, or a violation of a similar law of another jurisdiction[.]

§ 775.21(4)(c), Fla. Stat. (Supp.1998) (emphasis added). Before 1998, all qualifying felonies involved a sexual component. See § 775.21, Fla. Stat. (1997). In chapter 98-81, section 3, Laws of Florida, the Legislature added sections 787.01 (kidnapping) and 787.02 (false imprisonment) to the list of qualifying felonies.

The Legislature concluded it had a compelling interest in protecting children and the public from sexual predators and imposed various requirements and restrictions on sexual predators. For example, a sexual predator must comply with registration requirements.

(a) A sexual predator must register with the [Florida Department of Law Enforcement] by providing the following information to the department:
1. Name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, photograph, address of legal residence and address of any current temporary residence, including a rural route address and a post office box, date and place of any employment, date and place of each conviction, fingerprints, and a brief description of the crime or crimes committed by the offender....
2. Any other information determined necessary by the department, including criminal and corrections records; non-privileged personnel, treatment, and abuse registry records; and evidentiary genetic markers when available.

§ 775.21(6)(a), Fla. Stat. (Supp.1998). A sexual predator not in the custody or supervision of the Department of Corrections must register in person within 48 hours of establishing temporary or permanent residence, or any time he or she moves, with both the Florida Department of Law Enforcement or the local sheriff and with the Department of Highway Safety and Motor Vehicles. § 775.21(6)(e)-(f), Fla. Stat. (Supp.1998). Prisoners designated sexual offenders must register with the Department of Corrections. § 775.21(6)(b). The registration requirement is imposed for the offender’s lifetime. § 775.21(6)(Z). Failure to comply with the registration and other requirements of the Act constitutes a third-degree felony. § 775.21(10).

The Act also requires that within 48 hours of a sexual predator’s registration, law enforcement agencies notify “members of the community and the public,” including each day care center and school within a mile of the offender’s residence, of the sexual predator’s presence. § 775.21(7)(a), Fla. Stat. (Supp.1998). It further immunizes from civil liability various officials and individuals for any damages resulting from the release of information about a designated sexual predator when the entity or individual was “acting upon the direction of any law enforcement agency.” § 775.21(9). Finally, the Act makes it a felony for most sexual predators to work or volunteer “at any business, school, day care center, park, playground, or other place where children regularly congregate.” § 775.21(10)(b).

Under the Act, the sole criterion for determining whether a defendant must be designated a “sexual predator” is whether the defendant was convicted of a qualifying offense. See § 775.21(5)(a)(l); see also Kelly v. State, 795 So.2d 135, 137 (Fla. 5th DCA 2001) (explaining that “based on the unambiguous language of the Act and the clearly stated legislative intent, ... the Act is mandatory and affords no discretion to the trial judge to designate an individual a sexual predator if the statutory criteria are established”), review denied, 851 So.2d 729 (Fla.2003).

B. Applicability of Due Process Protections

Both the United States and Florida Constitutions protect individuals from arbitrary and unreasonable governmental interference with a person’s right to life, liberty, and property. See U.S. Const, amends. V (“[N]or shall any person ... be deprived of life, liberty, or property, without due process of law.”); XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”); art. I, § 9, Fla. Const. (“No person shall be deprived of life, liberty or property without due process of law....”). The United States Supreme Court has identified two distinct areas of due process protection: procedural and substantive. Procedural due process affords notice of a possible government deprivation and a meaningful opportunity to contest it, usually before it is imposed. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (explaining that the “essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it”). By contrast, substantive due process bars “certain government actions regardless of the fairness of the procedures used to implement them.” County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).

This case implicates substantive due" process. The Act provides for a hearing before an individual is designated a sexual predator. See § 775.21(5), Fla. Stat. (Supp.1998) (requiring the designation to be made at the sentencing hearing). Therefore, the issue is not notice or an opportunity to be heard. Even if Robinson can demonstrate that he is not a sexual predator — or that his offense did not contain a sexual element — the Act requires his designation anyway. The hearing is essentially a perfunctory ■ step along the way to designation. The question here is whether the State may designate someone a sexual predator when the State agrees he did not commit, or intend to commit, a sexual crime. That question implicates substantive due process concerns.

The due process clauses, however, only protect against deprivations of life, liberty, or property. Therefore, the next question is whether the requirement that Robinson register as a sexual predator, along with the Act’s other requirements, deprives him of one of those rights. Neither Robinson’s right to life nor his right to property is involved. Thus, if Robinson is entitled to the protections of the due process clause, there must be an infringement of a liberty interest.

Robinson’s designation as a “sexual predator” certainly constitutes a stigma. No one can deny that such a designation affects one’s good name and reputation. See, e.g., Doe No. 1 v. Williams, 167 F.Supp.2d 45, 51 (D.D.C.2001) (noting that “[i]t is beyond dispute that public notification pursuant to the [District of Columbia’s Sexual Offender Registration Act] results in stigma”), rev’d in part on other grounds sub nom. Does 1-5 v. Williams, No. 01-7162, 2003 WL 21466903 (D.C.Cir. Jun 19, 2003). The interest' in one’s reputation alone, however, is not a liberty interest and thus “the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts” does not by itself constitute a harm sufficient to be afforded the protections of due process. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Such a stigma must be coupled with “more tangible interests such as employment” or altered legal status to establish entitlement to these protections. Id. at 701, 708-09, 96 S.Ct. 1155.

We believe the Act imposes more than a stigma. As outlined above, under the Act, a person designated a sexual predator is subject to life-long registration requirements. See § 775.21(5), Fla. Stat. (Supp. 1998). Further, as another court has noted, “[tjhese statutes create no mere informational reporting requirement, the violation of which is punished with a small fine.” Giorgetti v. State, 821 So.2d 417, 422 (Fla. 4th DCA 2002), approved, 868 So.2d 512 (Fla. 2004). To the contrary, the failure of a designated sexual offender to comply with these and other requirements of the Act constitutes a third-degree felony. § 775.21(10). Moreover, a designated sexual predator is prohibited from seeking certain tort remedies, see § 775.21(9), and from working “where children regularly' congregate.” § 775.21(10)(b). Finally, we cannot ignore that designated sexual predators are subject to social ostracism, verbal (and sometimes physical) abuse, and the constant surveillance of concerned neighbors. These additional limitations implicate more than merely a stigma to one’s reputation. Other courts have found that similar registration statutes contained sufficient stigma-plus factors to implicate liberty interests. See, e.g., State v. Bani, 97 Hawai'i 285, 36 P.3d 1255, 1264 (2001); Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007, 1012-13 (1997); Noble v. Bd. of Parole, 327 Or. 485, 964 P.2d 990, 995-96 (1998). We therefore hold that the designation as a sexual predator constitutes a deprivation of a protected liberty interest.

C. The Standard for Analyzing the Act’s Constitutionality

Having determined that a constitutional due process right is at stake— Robinson’s liberty interest — ^we must now decide the appropriate standard for analyzing whether the Act adequately protects that right. “[T]he basic test [of substantive due process] is whether the state can justify the infringement of its legislative activity upon personal rights and liberties.” In re Forfeiture of 1969 Piper Navajo, 592 So.2d 233, 235 (Fla.1992). A statute must not be unreasonable, arbitrary, or capricious, and must have a “reasonable and substantial relation” to a legitimate governmental objective. State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986); see In re Forfeiture, 592 So.2d at 235. The rational relationship test used to analyze a substantive due process claim is synonymous with the reasonableness analysis of an equal protection claim. See In re Wood, 866 F.2d 1367, 1371 (11th Cir.1989) (stating that standard for evaluating substantive due process claim in which fundamental right is not implicated is “virtually identical to the ‘rational relationship’ test for evaluating equal protection claims”); State v. Walker, 444 So.2d 1137, 1138 (Fla. 2d DCA) (noting that the test for equal protection and substantive due process claim “is essentially the same where no fundamental rights are at stake”), aff'd, 461 So.2d 108 (Fla.1984). When a statute encroaches on fundamental constitutional rights, however, the statute also must be -narrowly tailored to achieve the state’s purpose. See In re Forfeiture, 592 So.2d at 235; 10A Fla. Jur.2d Constitutional Law § 485 (2003). As explained below, we need not decide whether the Act implicates a fundamental right because the statute as applied to Robinson does not meet the rational relationship test.

D. The Due Process Violation

As stated previously, the ■ Act’s purpose is to protect the- citizenry, particularly children, from those who have committed or have attempted to commit sexual or sexually exploitative crimes. Section 775.21(4)(c) of the Act states that “an offender shall be designated as a ‘sexual predator’ ” if the offender has committed one of the enumerated crimes. The Act does not separately define “sexual predator.” Robinson was automatically designated a sexual predator solely because he was convicted of kidnapping a child of whom he is not ■ the parent. See § 775.21(4)(e), Fla. Stat. (Supp.1998). The crime of kidnapping does not by definition contain a sexual component. See § 787.01, Fla. Stat. (1999) (defining kidnapping). Neither does carjacking, the other crime of which he was convicted. See § 812.133, Fla. Stat. (1999). Further, the circumstances of his crime concededly lacked any sexual component. Both in the information and at trial, the State contended that the kidnapping was committed solely to facilitate the carjacking because Robinson’s car ran out of gas. The child involved was an infant, whom Robinson left outside a doctor’s office a few blocks from the scene of the carjacking. No sexual motive existed. At the hearing on the State’s motion to declare Robinson a sexual predator, the State agreed that there was “no sex involved” in Robinson’s kidnapping of the child. The State sought the designation solely because of the kidnapping conviction, and the court designated Robinson a sexual predator solely because the Act required it. The sexual predator designation and its many requirements were thus imposed on Robinson without any evidence — or éven the contention — of a sexual motive or a sexual or sexually exploitative act. Nor can a sexual motive or a sexual or sexually exploitative act be inferred from the circumstances of the crime.

The State argues that the Act meets rational-basis review because the Legislature rationally could have concluded that the inclusion of all defendants convicted of kidnapping or false imprisonment of a minor not their child is justified given that a high percentage of such crimes are committed for some sexual purpose. The State also argues that the Legislature rationally could have concluded that the difficulty in confirming whether an abducted child has been sexually exploited or whether the perpetrator had a sexual motive justifies the inclusion of all persons convicted of kidnapping or false imprisonment of a minor not their child. The State notes that because of a child victim’s trauma, fear, or infancy, the child may be unwilling or unable to confirm whether sexual exploitation occurred. Further, the State urges that the very nature of the crimes of kidnapping and false imprisonment makes it difficult to prove sexual exploitation or motivation because the child is removed from public view.

As we already have noted, Robinson does not argue that the Act is unconstitutional on its face. He also does not argue that the Act is unconstitutional as applied to all child kidnappers. Therefore, we assume, without deciding, that the Act’s designation of child kidnappers as sexual predators is rationally related to the legislative purpose of protecting children from sexual predators. Although the Legislature’s concern for protecting our children from sexual predators may be reasonable, however, the application of this statute to a defendant whom the State concedes did not commit a sexual offense is not. Robinson’s designation as a sexual predator can fulfill none of the statute’s purposes. The State conceded he did not commit a sexual offense, and he left the infant child at a doctor’s office a few blocks from where he and his companion appropriated the car. Thus, np question remains about whether Robinson possibly could have committed a sexual act on the child. No rational relationship exists between the statute’s purpose of protecting the public from known sexual predators and Robinson’s designation as one.

Ohio appellate courts have reached this same conclusion in remarkably similar circumstances. In State v. Reine, No. 19157, 2003 WL 77174, at *1 (Ohio Ct.App. Jan.10, 2003), appeal dismissed, 99 Ohio St.3d 1549, 795 N.E.2d 686 (2003), the defendant pled guilty to aggravated burglary, aggravated robbery, and four counts of kidnapping. As in this case, even though the State stipulated that the defendant’s offenses “were committed without any sexual motivation or purpose,” because the kidnapping victims were minors, the statute required the trial court to designate the defendant a sexually oriented offender. Id. Presented with a due process challenge, the appellate court framed the issue as follows:

The question is whether the requirement that an offender who has committed an offense under circumstances involving no sexual motivation or purpose nevertheless be classified as a “sexually oriented offender,” to register and to be reported to the public as a “sexually oriented offender,” bears any rational relationship to the purposes of the statute, or whether that requirement is unreasonable or arbitrary as applied to an offender who has committed an offense without any sexual motivation or purpose.

Id. at *3. The court stated that the statute’s purpose — to protect people, especially children, from sexually oriented offenders — was valid, but that such purpose was not served, and was possibly “dis-served,” by designating common criminals such as the defendant as sexual offenders. Id. at *3-4. Holding the statute unconstitutional as applied, the court stated:

Because we conclude that the application of the statutory requirement that Reine be classified as a sexually oriented offender, in a case in which it has been stipulated that his offenses were committed without any sexual motivation or purpose, is unreasonable and arbitrary, and bears no rational relationship to the purposes of the statute, we conclude that it offends the Due Process clauses of both the Ohio and United States constitutions.

Id. at *5; accord State v. Barksdale, No. 19294, 2003 WL 77115 (Ohio Ct.App. Jan.10, 2003) (identical opinion, different defendant), appeal dismissed, 99 Ohio St.3d 1549, 795 N.E.2d 686 (2003); cf. State v. Young, Nos. 19472, 19473, 2003 WL 2004025, at *6 (Ohio Ct.App. May 2, 2003) (affirming trial court’s refusal to designate defendant as sexually oriented offender, and agreeing that abduction offenses “were not motivated in any way by sexual purpose, or with a purpose to gratify Young’s sexual needs, or to allow Young to engage in sexual activity” and there was no rational relationship between “governmental goal of protecting the public from sexually oriented offenders and the facts of this case”), appeal dismissed, 99 Ohio St.3d 1549, 795 N.E.2d 686 (2003); see also State v. Washington, No. 99-L-015, 2001 WL 1415568, at *3-4 (Ohio Ct.App. Nov. 2, 2001) (holding that the designation of a defendant as sexually oriented offender for kidnapping his child where there was no evidence of sexual motivation bore no rational relationship to purpose of the statute). A New York court also has declared a similar statute unconstitutional (on both due process and equal protection grounds) as applied to a defendant who did not commit a sexual offense. See People v. Bell, 2003 WL 21649678, 3 Misc.3d 773, 778 N.Y.S.2d 837 (N.Y.Sup.Ct. June 30, 2003).

Our holding today is narrow. We hold only that under the facts of this case, where the State concedes that the crime contained no sexual element and the circumstances of the crime conclusively belie any sexual motive, the designation of the defendant as a sexual predator — which then invokes the attendant statutory requirements and prohibitions — based solely on his conviction for kidnapping a minor not his child violates the defendant’s right to due process of law.

IV. CONCLUSION

We hold that the sexual offender designation is unconstitutional as applied to Robinson, who was not convicted of an offense containing a sexual element, in circumstances concededly involving no sexual act, and which was committed without any sexual motivation or purpose. Accordingly, we affirm the decision of the district court in this case and' remand for further proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and PARIENTE and QUINCE, JJ., concur.

LEWIS, J., concurs in result only.

WELLS, J., dissents with an opinion.

WELLS, J.,

dissenting.

Although I concur in the majority’s conclusions regarding the standing issue, I dissent from the majority opinion. I recognize and appreciate that the majority’s opinion expressly states that its holding is narrow and limited to “the facts of this case, where the State concedes that the crime contained no sexual element and the circumstances of the crime conclusively belie any sexual motive.” Majority op. at 23. I agree that it is troubling that the State would pursue a sexual predator designation under the circumstances of this case; in which the State makes the concession it made and Robinson has two life sentences to serve. ■ However, I also conclude that the circumstances of this case, the record in this case, and the arguments made by Robinson in the courts below make this ah inappropriate case for this Court to reach the constitutional issues that the majority opinion discusses.

On the basis of a conviction for kidnapping, the State moved for Robinson to be designated a “sexual predator” under section 775.21, Florida Statutes (Supp.1998) (Florida Sexual Predators Act) (Act). At that time, the Act read in pertinent part as follows:

(4) SEXUAL PREDATOR CRITERIA.—
(c) ... [U]pon conviction, an offender shall be designated as a “sexual predator” under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:
1. The felony meets the criteria of former ss. 775.22(2) and 775.23(2), specifically, the felony is:
a. A capital, life or first-degree felony violation of si 787.01 [kidnapping] or 787.02 [false imprisonment], where the victim is a minor and the defendant is not the victim’s parent....

§ 775.21, Fla. Stat. (Supp.1998). Upon the State’s motion, the circuit court held a hearing, at which the State agreed “there was no sex involved” in Robinson’s crime. Based on its reading of the Act, however, the circuit court concluded that Robinson met the statutory definition of a sexual predator and, therefore, his designation as a sexual predator was mandatory.

On appeal, Robinson argued that the Act is unconstitutionally overinclusive because it covers offenses that do not involve or require sexual contact. The Fourth District Court of Appeal agreed and reversed Robinson’s designation. Robinson v. State, 804 So.2d 451, 452-53 (Fla. 4th DCA 2001). In a threshold determination, the court noted that the rational relationship test applied to Robinson’s constitutional challenge because the Act is regulatory, not punitive, and kidnappers are not in a suspect or quasi-suspect class. Id. at 453. Without expressly so stating, the court thereby signaled that it was employing an equal protection analysis. The court then concluded that the Act did not pass the rational relationship test when applied in Robinson’s case because there was “no sexual element to his crime.” 804 So.2d at 453. In a dissenting opinion, Judge Stone agreed that the rational relationship test applied but concluded that the Act is not unconstitutionally overinclusive because “it is the legislature’s prerogative to include the broad category of kidnapping in this statute, regardless of the circumstances under which the child is kidnapped or the length of time the child is held and notwithstanding an absence of evidence of what occurred during the captivity.” Id. (Stone, J., dissenting).

Because the Fourth District’s decision declared a state statute unconstitutional, this Court accepted appellate jurisdiction. See art. V, § 3(b)(1), Fla. Const. In his brief and oral argument before this Court, Robinson challenged the Act’s constitutionality on two separate grounds. As his first ground, he argued that, notwithstanding the Act’s facial constitutionality, the legitimate governmental purpose of notifying the public of where sexual predators reside is not rationally related to designation of Robinson as a sexual predator, and thus the Act is unconstitutional as applied to him. This argument, which challenges the broadness of the Act’s classification of “sexual predators,” is essentially an equal protection challenge. As his second ground, Robinson argued that the Act violates his substantive due process rights because it establishes a conclusive presumption — that a person’s crime of kidnapping of a minor who is not his own child was a sexually exploitative offense or motivated by an intent to engage in sexual exploitation — without providing an opportunity to rebut that presumption.

Thus, this case addresses the constitutionality of a state statute. Although such issues are reviewed de novo, statutes come to this Court “clothed with a presumption of constitutionality.” City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002). All reasonable doubts are to be resolved in favor of the statute’s validity. In re Caldwell’s Estate, 247 So.2d 1, 2 (Fla.1971). Additionally, this case involves a statutory classification. Statutory classifications are presumed valid whenever reasonably possible. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); North Ridge Gen. Hosp. v. City of Oakland Park, 374 So.2d 461, 464 (Fla.1979). The party challenging a legislative classification bears the burden of proving its invalidity. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Fla. High Sch. Activities Ass’n v. Thomas, 434 So.2d 306, 308 (Fla.1983).

Given these standards, I believe the majority’s decision to find the Act, which unambiguously and mandatorily defines Robinson as a sexual predator, unconstitutional as applied to Robinson to be erroneous as its analysis is based on an unpre-served and insufficiently established due process argument. First, as the majority acknowledges, the Fourth District appears to have employed an equal protection, not due process, analysis in the decision under review. Second, Robinson’s due process claim raised before this Court — that the Act violates his substantive due process rights by establishing a conclusive presumption — was neither specifically raised before the circuit court below nor mentioned by the Fourth District-in the decision under review. Given that the only due process claim ever raised by Robinson was not properly preserved for appellate review and that the decision under review relied upon an equal protection analysis to hold the Act invalid as applied to Robinson, I believe the majority errs in addressing sua sponte an issue that is not properly before this Court. Without expressly stating it, the majority has employed what has become known as the “tipsy coachman” doctrine that allows an appellate court to affirm a trial court that reaches the right result but for the wrong reasons. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002). However, “[t]he key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.” Id. at 906-07. The record in this case is remarkably lacking in support for the due process analysis utilized by the majority, as best evidenced by the complete absence of argument regarding the highly relevant “stigma plus” test until this Court raised the issue in the oral argument of this case.

Furthermore, even if the due process issue taken up by the majority were preserved, I find it insufficiently established in this case. Robinson fails to meet the threshold requirement for challenging a statute under the Due Process Clause-that a protected life, liberty or property interest is at stake. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). As the majority acknowledges, the United States Supreme Court has held that the imposition of a stigma alone is an insufficient ground for finding a'liberty interest protected under the Fourteenth Amendment. In Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court stated, in the context of a due process challenge to the posting of a police flyer of “active shoplifters,” that “reputation alone, apart from some more tangible interests such as employment, is [njeither ‘liberty’ nor ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” See also Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6-7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (“In Paul ..., we held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest.”). Rather, a governmental action challenged on due process grounds must “remove or significantly alter” an interest “recognized and protected by state law.” Paul, 424 U.S. at 710-711,-96 S.Ct. 1155. Both federal and Florida courts have interpreted Paul as setting forth a “stigma plus” test to be applied when a plaintiff alleges harm to his or her reputation that requires proof that the challenged governmental action not only stigmatizes the plaintiff but also has the effect of altering or extinguishing another interest previously recognized under state law. See, e.g., Valmonte v. Bane, 18 F.3d 992 (2d Cir.1994); Gervin v. Andrews, 826 So.2d 504 (Fla. 4th DCA 2002).

Here, Robinson wholly failed to argue the significant question of whether his case meets the “stigma plus” test. Rather, in a mere footnote of his brief, he stated in a conclusory manner that designation as a sexual predator imposes a social stigma upon him and affects his liberty interest because it regulates his whereabouts as a sexual predator. However, as the State correctly noted, Robinson is serving two life sentences. Therefore, any effect that designation as a sexual predator will have upon him is minimal. While the Act provides that a person designated as a sexual predator who is in the custody or control of the Department of Corrections must register with the Department of Corrections, see § 775.21(6)(b), Fla. Stat. (2002), all other registration and notification duties under the Act do not apply until the offender is released from custody, see § 775.21(6)(f)-(j), (i), Fla. Stat. (2002). Thus, even assuming arguendo that the Act deprives some sexual predator desig-nees of a liberty interest, under the specific facts of this as-applied challenge, the threshold requirement that a protected life, liberty, or property interest be at stake has not been met.

      . We have approved constitutional decisions of the district courts based on different constitutional grounds. See State v. Saiez, 489 So.2d 1125, 1126, 1129 (Fla.1986) (agreeing that the subject statute was unconstitutional, but rejecting the district court's reasoning that the statute was overbroad and vague and holding instead that statute violated due process); see also Westerheide v. State, 831 So.2d 93, 110-11 (Fla.2002) (concluding that the defendant’s equal protection challenge to determinations made under the sexual offender involuntary commitment statute was properly a due process claim).

      . We recognize that the United States Supreme Court also has held that the equal protection clause may give rise to a cause of action by a " 'class of one' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for” the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Willowbrook v. Olech, 78 Wash. L.Rev. 367, 393-99 (2003) (explaining equal protection basis for Olech). Such analysis, however, does not apply here.

      . Robinson adequately preserved the due process argument at the hearing below, where he argued as follows:
      I believe the statute, it would be unconstitutional, unconstitutional application to Mr. Robinson. It does not lie there. If the Court .looks at the definition of a sexual predator, all statutes must be strictly construed. Legislative intent of this was to weed out sexual predators. Says therein the definition of a sexual predator. According to that definition, Mr. Robinson does not fit there or the facts of .this case shows he does not fit there, in the definition of sexual predator. Somehow, by the very nature of a crime, without regard to what the acts were or the nature was, falls into sexual predator, crime is designated automatically. ' That would be over broad and unconstitutional, in my opinion. It would be an unconstitutional application to Mr. Robinson.... If it is an absolute finding you must find somebody because of a conviction of a charge with regard to the rest of that statute of what is a sexual predator, this is definitely an unconstitutional statute.

      . The "Megan's Law” was enacted in memory of Megan Kanka, a seven-year-old New Jersey girl who was sexually assaulted and murdered by 'a neighbor who had been twice convicted of sexual offenses. See Doe v. Pataki, 120 F.3d 1263, 1265 n. 1 (2d Cir.1997).

      . As the district court noted in the opinion below, 804 So.2d at 453 n. 1, the federal statute, known as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, distinguishes among three categories of individuals: those convicted of a criminal offense by a nonpar-ent against a victim who is a minor, such as kidnapping and false imprisonment; those convicted of a sexually violent offense; and sexually violent predators. See 42 U.S.C. § 14071(a) (2003). The statute imposes different registration requirements for each.

      . The statute allows sexual predators who meet certain conditions to petition the circuit court for removal of the designation. Id. § 775.21(6)(Z )• Offenders designated before October 1998 must wait at least ten years to petition, and offenders designated thereafter must wait twenty.

      . A "stigma” is "[a] mark or token of infamy, disgrace, or reproach.” The American Heritage Dictionary of the English Language 1702 (4th ed.2000).

      . The State filed as supplemental authority the United States Supreme Court's decision in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). In Doe, the Supreme Court reversed a state court holding that a defendant designated a sexual offender under a Connecticut statute was entitled to a hearing on whether he was "currently dangerous.” The Court stated that under that statute, dangerousness was irrelevant and concluded that "assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact [dangerousness] that is not material under the Connecticut statute.” Id. at 7, 123 S.Ct. 1160. The Court’s reasoning was based on the idea that the sexual offender designation "turn[ed] on an offender’s conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” Id. Unlike the defendant in Doe, Robinson was not convicted of a crime involving a sexual element or intent. Therefore, unlike that defendant, he did not have a meaningful opportunity to contest whether his offense was sexually related or sexually exploitative in nature or purpose. Moreover, the purposes of the Act — to protect the citizenry, particularly children, from those who have committed or attempted to commit sexual or sexually exploitative crimes' — are in no way served by designating non-sexuai offenders as sexual predators.

      . In 1998, the Legislature added sections 787.01 and 787.02 to the list of enumerated felonies giving rise to sexual predator designation. See ch. 98-81, § 3, Laws of Fla. Prior to that addition, all enumerated felonies inherently involved a sexual component as an element of the crime. See § 775.21, Fla. Stat. (1997).

      . This is bolstered by the fact that less than a month following the issuance of its Robinson decision, the Fourth District addressed a similar challenge to section 943.0435, Florida Statutes (2001), Florida’s “sexual offender” registration statute, and cited Robinson for support of its holding that the "statute violates equal protection in classifying [Raines] as a ‘sexual offender,’ when he was not convicted of an offense involving any sexual component.” Raines v. State, 805 So.2d 999, 1000 (Fla. 4th DCA 2001) (emphasis added).

      . At the designation hearing, Robinson's counsel initially argued that the language of and legislative intent behind section 775.21 allowed trial court discretion as to whether to designate an offender. He argued in the alternative that mandatory application of the Act to Robinson would be unconstitutional because both parties stipulated that no sex was involved in this case. The substantive due process/conclusive presumption argument now advanced to this Court simply was not preserved at the hearing. In fact, Robinson did not raise the argument that the Act unconstitutionally created a conclusive presumption until approximately nine months after filing his notice of appeal with the Fourth District, when he filed before the circuit court a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. This was clearly improper as a sexual predator designation is not a sentence. See Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998) (holding that designation is neither a sentence nor a punishment).

        . Although the majority finds the Act generally implicates due process protection, I find this issue less than salient and one that should not be ruled upon without full, on-point briefing, which does not exist in this case. I note that one district court has found that the Act’s registration requirements do not constitute an affirmative disability or restraint. See Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998). And while that court acknowledged a possible exception regarding the Act’s employment restriction, at least one federal circuit court has suggested that an effect on private, as opposed to public, employment does not constitute a sufficient plus factor under the "stigma plus” test. See Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir.1999) (noting, in the context of a due process challenge to Tennessee’s sex offender registration law, that "[cjourts recognizing a constitutionally protected right to employment have done so in very limited circumstances and have dealt with terminations of government employment where state law or an agreement between the parties purports to limit the ability of the government to terminate the employment.... [Wje have not found[ ] any case recognizing a general right to private employment.”). As well, other state and federal courts have rejected arguments asserting that the sexual offender registration statutes of other states implicate due process protection. See, e.g., Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997); Lanni v. Engler, 994 F.Supp. 849 (E.D.Mich.1998); Helman v. State, 784 A.2d 1058 (Del.2001); In re Wentworth, 251 Mich.App. 560, 651 N.W.2d 773 (2002); In re M.A.H., 20 S.W.3d 860 (Tex.Ct.App.2000); In re Meyer, 142 Wash.2d 608, 16 P.3d 563 (2001). The issue of whether Florida's Sexual Predator Act implicates due process protections in the context of the "stigma plus” test certainly will come before this Court in its review of Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), notice of appeal filed, No. SC03-2103 (Fla. Nov. 10, 2003), a decision in which the Third District concluded the "stigma plus” test is satisfied. Thus, I believe this Court should not decide this significant issue until it is fully briefed and argued in such a case.


author: PER CURIAM.

text:
    Lenton McCRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1666.
    District Court of Appeal of Florida, First District.
    May 14, 2004.
    Lenton McCray, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and BROWNING, JJ., concur.


author: WHATLEY, Judge.

text:
    STATE of Florida, Petitioner, v. Brenda TELESZ, Respondent.
    No. 2D03-4609.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, and C. Marie King, Assistant State Attorney, Clearwater, for Petitioner.
    Bob Dillinger, Public Defender, and Afred E. Corey, Assistant Public Defender, Clearwater, for Respondent.
   WHATLEY, Judge.

The State of Florida filed this petition for writ of certiorari seeking review of an order of the circuit court sitting in its appellate capacity. The order determined that the two-year statute of limitations period defined in section 775.15, Florida Statutes (1997), applied to the crime of petit theft, and therefore, the State’s information filed against Brenda Telesz was properly dismissed because the case did not commence within the two-year period. We conclude that the circuit court departed from the essential requirements of law by applying the incorrect statute of limitations and grant the State’s petition for writ of certiorari.

On December 14, 1998, Telesz was charged by information with petit theft, a first-degree misdemeanor defined in section 812.014, Florida Statutes (1997). Tel-esz was not arrested until July 2002, after having failed to appear on a summons issued on December 22, 1998. The county court dismissed the information based on the expiration of the two-year statute of limitations in section 775.15, and the circuit court affirmed the dismissal.

Section 775.15(2)(c) provides that prosecution for a misdemeanor of the first degree must be commenced within two years after it is committed. However, section 812.035(10), Florida Statutes (1997), provides that, “[notwithstanding any other provision of law,” a criminal proceeding under sections 812.012-812.037 or section 812.081 may be commenced at any time within five years after the cause of action accrues. We conclude that section 812.035(10) must be applied to the crime of petit theft, as its language specifically encompasses the petit theft statute. See State v. J.M., 824 So.2d 105, 112 (Fla.2002) (noting the “long-recognized principle” of statutory construction that a more specific statute will control over a more general statute).

Although Telesz notes that there are no district court decisions involving this issue, several districts have held that section 812.035(10), instead of section 775.15, applies to the offense of grand theft. We find these cases persuasive because grand theft, like petit theft, is defined in section 812.014.

In Franklin v. State, 505 So.2d 1118, 1119 (Fla. 2d DCA 1987), this court determined that the offense of grand theft is controlled by section 812.035(10), “which provides a five-year statute of limitations in cases of theft instead of the general three-year statute of limitations for third degree felonies” outlined in section 775.15. In State v. Guthrie, 567 So.2d 544, 545 (Fla. 2d DCA 1990), this court noted that section 812.035(10) specifically provides that its statute of limitations controls “ [n] otwithstanding any other provision of law” and held as follows:

Section 812.035 does not require a strict construction but is to be construed in light of its remedial goal. § 812.037, Fla. Stat. (1983). On the other hand, section 775.15 must be strictly construed. § 775.021(1), Fla. Stat. (1983).... Accordingly, we do not believe the legislature has authorized the state to apply section 775.15(6) to the special statute of limitations for theft.

See also Williams v. State, 707 So.2d 897 (Fla. 2d DCA 1998).

Several other district courts have held that section 812.035 takes precedent over section 775.15 in grand theft cases. State v. Hampton, 692 So.2d 278, 279 (Fla. 5th DCA 1997) (holding that the more specific five-year statute of limitations period in section 812.035 applied to grand theft rather than the more general statute, section 775.15); O’Malley v. Mounts, 590 So.2d 437, 438 (Fla. 4th DCA 1991) (concluding that the statute of limitations for grand theft is five years); State v. Chacon, 479 So.2d 229, 230 (Fla. 3d DCA 1985) (ruling that the applicable statute of limitations for grand theft is the five-year statute under section 812.035(10), “which is made specifically applicable to all theft prosecutions notwithstanding any other contrary statute”), reversed on other grounds, State v. Fields, 505 So.2d 1336 (Fla.1987); State v. Bare, 473 So.2d 799, 800 (Fla. 5th DCA 1985) (concluding that the statute of limitations period in section 812.035(10) supersedes section 775.15(2)(b)).

We note that there is no language in section 812.035(10) or section 775.15 which would suggest that the limitations provision should apply differently to petit theft than it does to grand theft. Therefore,' in cases involving petit theft the five-year statute of limitations period in section 812.035(10) controls, and the circuit departed from the essential requirements of law by holding to the contrary.

Accordingly, we grant the petition for writ of certiorari and remand this case for further proceedings.

Reversed and remanded.

ALTENBERND, C.J., and CANADY, J., concur.

      . Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (holding that a district court's review on second-tier certiorari is limited to determining whether the circuit court departed from the essential requirements of law).


text:
    ACHMAC, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-922.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2004.
    Jason H. Clark, West Palm Beach, for Appellant.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Perez v. Am. Med., Inc., 842 So.2d 285 (Fla. 3d DCA 2003).

PETERSON, PALMER and ORFINGER, JJ., concur.


text:
    Scott COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2032.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Bennett v. State, 858 So.2d 1251, 1253 (Fla. 5th DCA 2003); Angulo v. State, 857 So.2d 355, 356 (Fla. 5th DCA 2003).

SAWAYA, C.J., PLEUS and PALMER, JJ., concur.


text:
    Heather DUNHAM, Appellant, v. Raymond R. DUNHAM, Appellee.
    No. 5D03-2271.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2004.
    Richard J. Feinberg and Sandra Valentin of Morgan & Barbary, P.A., Melbourne, for Appellant.
    Thomas W. Deans of Law Offices of Thomas W. Deans, P.A., Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED. See Kern v. Kern, 333 So.2d 17 (Fla.1976).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Eugene M. CASWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1456.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Eugene M. Caswell, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), approved by, 838 So.2d 504 (Fla.2003); Adams v. State, 780 So.2d 955 (Fla. 4th DCA 2001).

FARMER, C.J., STEVENSON and GROSS, JJ., concur.


text:
    Tracy TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5571.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Tracy Tucker appeals her judgments and sentences in circuit court case numbers 96-16202, 96-19074, 97-13442, 97-15856, 98-7951, 99-5642, 99-6228, 99-11150, 99-17257, 00-976, 02-7796, and 02-7335. She contends that the sentencing errors raised in her motion to correct sentence in case numbers 96-16202, 96-19074, 97-13442, 97-15856, 98-7951, and 00-976 must be corrected and that said correction will require resentencing in the remaining cases. The State agrees with part of Tucker’s argument. We affirm in part and reverse in part.

Circuit Court Case Numbers 96-16202, 96-1907Í, 97-1SU2, 97-15856

In case numbers 96-16202 and 96-19074, Tucker pleaded guilty to two third-degree felonies in each case and was placed on probation on February 24, 1997. Her probation was subsequently revoked based on technical violations as well as new law violations. Those new law violations were also third-degree felonies and formed the bases of case numbers 97-13442 and 97-15856. On November 3, 1997, Tucker was placed on concurrent terms of one year of community control followed by one year of drug offender probation in all four cases. Six times before the current judgments and sentences were imposed, Tucker violated various terms of community supervision upon which she had been placed by committing new law violations as well as technical violations. Tucker argues that when the trial court revoked her probation and imposed the forty-month prison sentences in case numbers 96-16202, 96-19074, 97-13442, and 97-15856, she had served more than the statutory maximum of five years for the third-degree felonies of which she was convicted in those cases. Thus, she contends, because she was not legally on probation at the time it was revoked, the trial court was without jurisdiction to revoke her probation and sentence her to prison.

We agree with Tucker’s argument, but we agree with the State that it is correct only with regard to case numbers 96-16202 and 96-19074. Tucker began her community supervision in case numbers 97-13442 and 97-15856 several months later than she began her supervision in case numbers 96-16202 and 96-19074, and therefore, she was legally on probation in case numbers 97-13442 and 97-15856 when she violated the terms thereof. See Collins v. State, 697 So.2d 1305 (Fla. 4th DCA 1997). Consequently, the trial court did not err in revoking Tucker’s probation in case numbers 97-13442 and 97-15856 and sentencing her to a term of imprisonment.

Circuit Court Case Numbers 98-7951 and 00-976

Tucker argues that the trial court improperly revoked her probation in these cases and sentenced her to forty-month prison terms because these case numbers were never included in any of the affidavits and amended affidavits of violation of probation, nor the warrants, that led to the revocation of her community supervision in the other cases. The State concedes this fact. See Jean-Marie v. State, 833 So.2d 870 (Fla. 4th DCA 2003). Accordingly, we reverse Tucker’s judgments and sentences in case numbers 98-7951 and 00-976. As the State points out, “[u]pon remand, the trial court may reconsider entering revocation if the State files the proper affidavit and warrant.” Id. at 871.

Accordingly, we affirm Tucker’s judgments and sentences in case numbers 97-13442 and 97-15856; we reverse her judgments and sentences in case numbers 96-16202 and 96-19074 and remand with directions that they be stricken; we reverse her judgments and sentences in case numbers 98-7951 and 00-976 and remand with directions that they be stricken; and we remand for resentencing in the remaining cases that Tucker has appealed if the trial court determines that the reversal in case numbers 96-16202 and 96-19074 so requires.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.

      . The trial court entered an order denying Tucker's motion, but the order was untimely, and therefore, it was a nullity. See Jackson v. State, 793 So.2d 117 (Fla. 2d DCA 2001). However, Florida Rule of Criminal Procedure 3.800(b) provides that a motion that is not ruled upon is deemed denied, thereby preserving the alleged sentencing errors for appellate review. Id.


text:
    M.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3068.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal from orders finding that M.H. committed a felony and committing him to the custody of the Department of Juvenile Justice, to be placed in a moderate risk residential program. We reverse.

A review of the record reveals that both the adjudicatory order and the commitment order in this case erroneously reflect that M.H. was found guilty of attempted armed robbery. However, the trial court’s oral pronouncement, which is controlling, was that M.H. committed the lesser offense of attempted strong arm robbery. As the State properly concedes, these documents must be amended to conform with the oral pronouncement. See S.F. v. State, 866 So.2d 121 (Fla. 4th DCA 2004); B.R.W. v. State, 799 So.2d 328 (Fla. 2d DCA 2001). Furthermore, it appears from our review of the record that the predisposition report, which the court relied upon at M.H.’s disposition hearing, erroneously indicates an adjudication of completed strong arm robbery. We are of the view that this too should be corrected.

Since it cannot be determined from the record whether these errors affected the trial court’s disposition of this case, we remand for the preparation of a completely accurate predisposition report, followed by a new disposition hearing.

Reversed and remanded for proceedings consistent with this opinion.


text:
    Kevin D. MURPHY, Appellant, v. DEPARTMENT OF REVENUE, Child Support Enforcement Program, on behalf of Ruby D. Lumpkin, Appellee.
    No. 4D03-684.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Kevin D. Murphy, Fort Lauderdale, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

We reverse the order dismissing the appellant’s petition for administrative hearing with prejudice. The Department of Revenue, appellee, failed to respond to our order of March 11, 2004, requiring it to file a copy of the petition for administrative hearing, nor did it file an answer brief as ordered by this court. On the face of appellant’s brief, it appears that the Department dismissed the petition for hearing when appellant was in substantial compliance with the rules. On remand, the Department shall reinstate the petition for administrative hearing.

WARNER, POLEN and STEVENSON, JJ., concur.


author: MONACO, J.

text:
    Salvatore FARIELLO, Appellant, v. Craig J. GAVIN, Michele Rose, et al., Appellees.
    No. 5D03-2256.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      Salvatore Fariello, Hernando, Pro Se.
    Jennifer Cates Lester of Dell, Graham, P.A., Gainesville, for Appellees.
   MONACO, J.

Appellant, Salvatore Fariello, appeals the dismissal with prejudice of his amended complaint seeking damages for defamation against the appellees, Craig Gavin, Michele Rose, Percy J. Moore, Ron Kurtz, Mark Canova, and Crystal Hills Mini Farms Unit 1 and 2 Association, Inc. (the “Association”). The basis for the dismissal was, first, the absolute privilege accorded comments made during the course of judicial proceedings, and second, a conditional or qualified privilege. We affirm the dismissals with prejudice in favor of Michele Rose, Percy J. Moore, Ron Kurtz, and Mark Canova without further comment. Because it is too early in the proceedings to discern whether Craig Gavin or the Association are able to benefit from the litigation privilege, however, we reverse the dismissal with respect to these two defendant/appellees, and remand for further proceedings.

This is not the first time this court has visited with Mr. Fariello and his neighbors at Crystal Hills Mini Farms. See Fariello v. Butts, 871 So.2d 245 (Fla. 5th DCA 2004). Briefly, the current dispute arises out of a claim by Mr. Fariello that Mr. Gavin, the president of the Association, slandered him on two occasions, and that he did so while acting as an agent for the Association. He alleges initially that Mr. Gavin made slanderous comments to Mr. Fariello’s neighbor, Thomas Turitto, to the effect that Mr. Fariello committed the crime of perjury in connection with certain of his professional qualifications. Three days later Mr. Gavin is alleged to have repeated the assertion of perjury at an open meeting of the Association. After suit was brought, Mr. Gavin and the Association moved to dismiss the complaint with prejudice asserting absolute and qualified immunity as the bases for the dismissal. The trial court granted the motions on the theory that it was appropriate to question the credibility of Mr. Fariello publicly because the two men were adversaries in the prior lawsuit. More specifically, the trial court held that:

Comment on a parties’ [sic] credibility is always relevant, and was undeniably relevant to the Plaintiffs (Mr. Fariello’s) other suit against Gavin and Crystal Hills. It is therefore absolutely privileged and this suit should be dismissed. Furthermore, the falsity or maliciousness of the slander alleged by the Plaintiff is irrelevant. Statements made regarding ongoing judicial proceedings, as was- the Plaintiffs first suit against Gavin and Crystal Hills, are privileged no matter how false or malicious those statements may be.

We review the order dismissing the complaint using a de novo standard of review. Sobi v. Fairfield Resorts, Inc., 846. So.2d 1204 (Fla. 5th DCA 2003).

This court has recognized that statements made “in connection with” or “in the course of’ an existing judicial proceeding are protected by absolute immunity, even if they aré not necessarily made in court or under oath. See Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999). The limits of that concept, however, have not been fully explored. We suppose that it is possible that the litigation immunity invoked by Mr. Gavin and the Association is applicable to the present controversy. See, e.g., Daniels v. Patterson, 751 So.2d 678 (Fla. 1st DCA 2000). The difficulty is, however, that we cannot tell based only on the complaint whether it will have any viability in this context.

There is a well-recognized immunity afforded to statements or actions taken during a judicial proceeding. By virtue of this immunity, defamatory statements made in the course of judicial proceedings by parties, witnesses and counsel are absolutely privileged, no matter how false or malicious those statements might be, provided the statements are relevant to the subject of inquiry. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606, 607 (Fla.1994); Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So.2d 309 (Fla. 3d DCA 1989); Wright v. Yurko, 446 So.2d 1162, 1164 (Fla. 5th DCA 1984). Torts such as perjury, libel, slander, and other actions based on statements made in connection with a judicial proceeding are not actionable. See Levin. The question, of course, is how the defense of immunity may be raised and tested.

Generally, immunity is an affirmative defense that should be pled by the party asserting it, and which may thereafter be considered after the facts are fleshed out by summary judgment or trial. There may, however, be exceptional eases in which the facts giving application to the defense are clearly apparent on the face of the complaint, in which case the defense may be raised by motion to dismiss. See, e.g., Kirvin v. Clark, 396 So.2d 1203 (Fla. 1st DCA 1981). The defense is analogous to a statute of limitations defense. A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So.2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So.2d 583, 584 (Fla. 1st DCA 1997).

In applying these principles to the present controversy, we begin, as we must, by examining only the complaint, and we take as true all well-pleaded facts contained in it. See Kirvin. We conclude that if the alleged defamatory language in the present case is subject to the litigation privilege, the application of that privilege is not disclosed by the allegations within the confines of Mr. Fariello’s complaint. Immunity, therefore, may not be raised in this case by a motion to dismiss.

As a back-up position, the trial court also concluded that if absolute immunity did not apply, then Mr. Gavin and the Association were at least conditionally immune. Once again, however, the affirmative defense of qualified immunity presents a fact intensive issue that should ordinarily not be resolved by a motion to dismiss. See Schreidell v. Shoter, 500 So.2d 228 (Fla. 3d DCA 1987); Riggs v. Cain, 406 So.2d 1202, 1203 (Fla. 4th DCA 1981). Mr. Fariello’s complaint does not reflect on its face whether the defense applies or not.

Accordingly, we affirm the dismissal with prejudice with respect to all appel-lees, except Mr. Gavin and the Association. We reverse the order dismissing the complaint with prejudice in favor of Mr. Gavin and the Association, and remand for further proceedings not inconsistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and TORPY, JJ., concur.

      . We take no position at this time regarding whether the litigation privilege applies to either or both alleged defamatory events.


text:
    Herbert N. PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1224.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Vinette Morris-Hudson, Orlando, Counsel for Appellant.
    No Appearance required for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

This is a case where the breaking of the rules has crossed the line and consequences must follow. The rules of appellate procedure include time schedules designed to insure an orderly and efficient appellate process. While we are aware that such rules are not meant to be rigid or unyielding where valid reasons or exceptional. circumstances support extension requests, when abuse of the rules and this court’s orders occurs, sanctions must.follow. This case involves such abuse. The chronology of events that transpired to lead us to this point is as follows:

On April 10, 2003, a notice of direct appeal of a criminal judgment and sentence was filed in this case. Thus, pursuant to Florida Rule of Appellate Procedure 9.140(f), the record on appeal was due to be filed fifty days later, on May 30, 2003. On June 30, 2003, more than thirty days after the deadline, this court issued an order to show cause to Appellant’s counsel, Vinette Morris-Hudson, why the appeal should not be dismissed for failure to timely file the record. Morris-Hudson responded with a request for an extension, which this court granted, up to July 31, . 2003.

After Appellant’s failure to serve and file the initial brief on or before September 11, 2003, another order to show cause issued on October 14, 2003. Morris-Hudson was given ten days to respond. This court received Morris-Hudson’s response on October 30, 2003, requesting yet another extension. This court responded by granting an enlargement up to November 28, 2003, but issued a concomitant order to show cause why Morris-Hudson should not be personally sanctioned pursuant to Florida Rule of Appellate Procedure 9.410. Again, Morris-Hudson was given ten days to file a response. When no response was received, this court issued an order on November 21, 2003, personally sanctioning Morris-Hudson $250 for her failure to comply with this court’s orders and the appellate rules. Morris-Hudson was given ten days to remit the sanction amount to the Clerk of the Court.

After the deadline for remittance of the sanction amount passed, this court issued another order on December 8, 2003, ordering Morris-Hudson to respond as to why she should not be further sanctioned, including referral to the Florida Bar, for her continued defiance of this court’s orders. Morris-Hudson was again given ten days to file a response. Her response was not filed with this court until December 29, 2003. In her response, Morris-Hudson maintained that her failure was due to an oversight. The $250 sanction was included with her explanation. Thereafter, on January 14, 2004, this court issued an order noting the untimely response and ordered Morris-Hudson to appear before the panel to explain the reasons for .her repeated failure to comply with this court’s orders and the appellate rules. The hearing was scheduled for February 4, 2004 at 1:30 p.m.

On February 4, 2004, Morris-Hudson arrived ten minutes late. A short time into the hearing (approximately ten minutes), Morris-Hudson appeared to be feeling faint and sank to the floor. Court personnel attempted ,to assist her and EMTs were called. Around the time of the EMTs’ arrival, counsel was able to sit in a chair and had regained her composure. It was agreed that the hearing would be continued at a later date and Morris-Hudson expressed that she “looked forward” to being heard. . .On March 1, 2004, this court sent notice continuing, .the hearing to March 24, 2004, at 1:30 p.m., and ordering Morris-Hudson to respond to allegations made in a pro se motion filed by her client wherein he requested “dismissal” of his counsel based on conflict, and sought relinquishment to the trial court for appointment of substitute counsel.

On March 12, 2004, Morris-Hudson filed a motion for extension to respond to her client’s motion, and her response was subsequently filed on March 17, 2004. In the cover letter of the March 17, 2004, response, Morris-Hudson stated, “I look forward to addressing any questions the court may have regarding Mr. Price’s allegations at the March 22, 2004 hearing.” (Emphasis added). Since the hearing was actually scheduled for March 24, 2004, Morris-Hudson’s office was telephonically notified that the hearing was scheduled for March 24, 2004, as clearly set forth in this court’s notice, not March 22, 2004, as stated in Morris-Hudson’s letter.

On March 24, 2004, at 12:50 p.m., Morris-Hudson’s secretary called to notify this court that Morris-Hudson was in a trial in Orange County and would be unable to attend the 1:30 p.m. hearing. At 1:20 p.m., Morris-Hudson personally called and stated that she would not be able to attend the hearing, explaining that she was calling from a break in a trial that was to reconvene at 2:00 p.m. Morris-Hudson stated that her secretary had incorrectly scheduled her obligations. This court has had enough.

Under Florida Rule of Appellate Procedure 9.410, this court has the authority to sanction attorneys for violating the rules of appellate procedure. Generally, we choose to impose the less egregious monetary sanction in lieu of dismissal in cases where counsel ignores the time limits set by the rules. However, in cases such as this, where a minimal monetary sanction has had no effect, published admonishment in conjunction with an additional monetary sanction is warranted, not only to send a message to the attorney, but to protect future clients from dismissal of their appeals due to substandard prosecution.

Having determined that attorney Vi-nette Morris-Hudson has violated the appellate rules and this court’s orders to the point of jeopardizing her client’s criminal appeal, we refer this matter to The Florida Bar. It is further ordered that Morris-Hudson is sanctioned in the amount of $1,000 to be paid by her to the Clerk of the Court within fifteen days from the date of this Opinion. Such sanction is appropriately imposed in this case pursuant to Florida Rule of Appellate Procedure 9.410.

IT IS SO ORDERED.

SAWAYA, C.J., PLEUS and PALMER, JJ., concur.

      . The certificate of service date to the attorney general, included with the response, was December 19, 2003.

      . She stated that she was hypoglycemic and had not eaten anything that day due to .her busy schedule. Cookies were administered to her and her blood sugar level was checked. It was determined that her blood sugar was low and she was instructed by the emergency personnel to go to the hospital. Morris-Hudson declined and signed a waiver.

      .Without getting into the specific assertions made in the Appellant’s motion, in light óf the grievous allegations made by Appellant against Morris-Hudson, his grievance against her with the Florida Bar, and her response to the Bar (submitted to this court by Morris-Hudson), it is a mystery to us why she has not requested withdrawal from representation in this appeal.


author: PLEUS, J.

text:
    Tyrone A. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2461.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Williams appeals claiming the trial court erred with respect to accepting his guilty plea to the crimes of battery and possession of cocaine and in sentencing him to five years imprisonment on the possession charge. He argues that a proper plea colloquy was not conducted, that no factual basis for the plea was offered and that the court erred in sentencing him to fee years imprisonment. Williams has not moved to withdraw his plea.

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) provides that appeals from guilty , pleas and pleas of nolo contendere may only be taken as follows:

A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
a) the lower tribunal’s lack of subject matter jurisdiction;
b) a violation of the plea agreement, if preserved by a motion to withdraw plea;
c) an involuntary plea, if preserved by a motion to withdraw plea;
d) a sentencing error, if preserved; or
e) as otherwise provided by law.

(emphasis added).

Issues regarding an inadequate plea colloquy, the violation of a plea agreement or the involuntariness of the plea must be raised by a motion to withdraw the plea. State v. T.G., 800 So.2d 204, 210 (Fla.2001); Robinson v. State, 373 So.2d 898 (Fla.1979); Angulo v. State, 857 So.2d 355 (Fla. 5th DCA 2003).

Likewise, an issue concerning a sentence which exceeds the terms contained in a plea agreement is not a sentencing error but instead is a violation of the plea agreement which must, be raised through a motion to withdraw. Williams v. State, 821 So.2d 1267 (Fla. 2d DCA 2002); Gafford v. State, 783 So.2d 1191 (Fla. 1st DCA 2001) (both holding that after adoption of 1997 amendments to Florida Rule of Criminal Procedure 3.170(i), an issue concerning a sentence which exceeds the terms of a plea agreement is no longer considered a sentencing error but instead is a violation of the plea agreement which must be raised through a timely filed motion to withdraw plea).

The issues sought to be raised have not been properly preserved for review. We affirm without prejudice to the filing of a motion to withdraw plea in the trial court. See Leonard v. State, 760 So.2d 114 (Fla.2000).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . The defendant did file a motion to reconsider sentence, but the order denying such motion is not an appealable order. See Wilson v. State, 846 So.2d 1220 (Fla. 5th DCA 2003).


text:
    Wilfred L. KNOX, Appellant, v. STATE of Florida, et al., Appellees.
    No. 5D03-3888.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Wilfred L. Knox, Daytona Beach, pro se.
    Judy Bone, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee, Department of Corrections.
    No Appearance for Appellee, State of Florida.
   PLEUS, J.

Wilfred Knox appeals from an order denying his pro se petition for -writ of habeas corpus. This is the third bite at the apple for Knox.

The issue in this case is precisely the same issue previously adjudicated in two actions brought by Knox. Furthermore, the issue, whether an ex post facto violation occurred when the Department of Corrections forfeited Knox’s gain time upon revocation of his control release, was correctly decided adversely to Knox in those actions.

In 1986, Knox was sentenced as an habitual offender to 30 years for a robbery. In 1988, he was re-sentenced to 30 years and the habitual offender designation was removed.

In 1993, Knox was released early from prison to control release supervision. Knox violated the terms of supervision and supervision was revoked by thé Florida Parole Commission. As a penalty for the violation, and based upon section 944.28(1), Florida Statutes, DOC forfeited the gain time earned before release. Knox was returned to the custody of DOC to continue serving the 30 year sentence.

In 1997, Knox filed a petition for writ of mandamus in the Second Judicial Circuit. The petition challenged the forfeiture of gain time upon revocation of control release supervision on the basis that the forfeiture constituted an ex post facto violation.

The State’s response to the petition noted that forfeiture authority is set out in sections 947.146 and 944.28(1), Florida Statutes. Citing Bowles v. Singletary, 698 So.2d 1201 (Fla.1997), DOC argued that the forfeiture did not constitute an ex post facto violation because Knox waived any ex post facto claim he might otherwise have when he voluntarily accepted the offer of early release. The circuit court denied the petition, expressly rejecting the ex post facto claim.

Knox appealed to the First District Court of Appeal but the case was dismissed for failure to pay the filing fee. Thereafter, Knox filed the instant petition for writ of habeas corpus in the Seventh Judicial Circuit. Knox again challenged the forfeiture of gain time as a result of the revocation of control release supervision on ex post facto grounds. DOC filed its response seeking denial of the petition on the grounds of res judicata, collateral estoppel and abuse of the writ.

In addition to citing to the prior circuit court ruling, the response noted that Knox’s claim had also been litigated with .the Florida Parole Commission. In a per curiam affirmance, the First District affirmed the denial of relief as follows:

AFFIRMED. See Westberry v. Moore, 772 So.2d 1208, 1209 (Fla.2000) (holding that a defendant who accepts the benefits of control release waives any argument that application of the control release program, in the form of the forfeiture of gain time, was an ex post violation because control release was enacted after the date of his or her offense.); Bowles v. Singletary, 698 So.2d 1201, 1204, (Fla.1997) (“[A]n affirmative election to accept a newly created program waives any potential ex post facto argument the petitioner may have had.”)

Knox v. Florida Parole Commission, 825 So.2d 958 (Fla. 1st DCA 2002).

The trial court below correctly concluded that relitigation of this matter is barred by the doctrine of collateral estop-pel or issue preclusion. Collateral estop-pel prevents identical parties and their privies from relitigating the same issues that have previously been adjudicated. State v. McBride, 848 So.2d 287 (Fla.2003). As stated in McBride:

Although collateral estoppel generally precludes relitigation of an issue in a subsequent but separate cause of action, its intent, which is to prevent parties from rearguing the same issues that have been decided between them, applies in the post conviction context.

848 So.2d at 291.

As this issue was fully litigated in a final decision of the Second Judicial Circuit, Knox is estopped from relitigating the issue again.

A manifest injustice exception was recognized in McBride, 848 So.2d at 292, but this exception is inapplicable here. As the Second Judicial Circuit noted in denying Knox relief, an inmate waives any ex post facto argument as to forfeiture of gain time upon revocation of control release by electing to accept the terms and conditions of early release under the control release program. Westberry v. Moore, 772 So.2d 1208, 1209 (Fla.2000); Bowles v. Singletary, 698 So.2d 1201 (Fla.1997). The First District applied this principle when Knox unsuccessfully raised this same claim in his action against the Florida Parole Commission. The trial court here correctly concluded that Knox, having taken advantage of control release, is barred from challenging the forfeiture of gain time resulting from revocation of that control release.

AFFIRMED.

GRIFFIN and PALMER, JJ„ concur.

      . The authority to forfeit control release gain time went into effect on September 1, 1990. Inmates such as Knox, whose offenses were committed prior to that date were given the option to accept or reject early release on control release. Knox accepted early release, then violated the terms of such release.


text:
    L.L.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3218.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant, L.L.H., a juvenile, appeals from an order granting the State’s motion to vacate his plea and terminating juvenile proceedings. The trial court ruled the defendant’s guilty plea must be set aside as the court lacked subject matter jurisdiction because no delinquency petition had been filed charging a juvenile offense.

The defendant was taken into custody as a result of an order to take into custody issued by the juvenile court pursuant to an arrest affidavit. This order gave as the reason “trafficking in cocaine.” The defendant was taken into custody, held in secure detention pursuant to a detention order signed by the juvenile court judge, and at a pre-trial conference, pled guilty. The court accepted the plea and ordered the case set for disposition.

' Prior to disposition, the State, which had direct filed on the charge against the defendant, filed a motion to vacate the plea and terminate juvenile proceedings. According to the State, since no delinquency petition had been filed, the juvenile court was without jurisdiction to accept the plea and prosecution was proper in adult court.

The trial court agreed, ruling that under the juvenile rules, a plea cannot be entered and accepted until a delinquency petition is filed. The court found that the only papers that had been filed were those that dealt with the detention status of the juvenile. The court ruled it lacked jurisdiction to accept the plea and ordered the plea set aside and the juvenile proceedings terminated given that the State had direct filed.

While conceding that no petition for delinquency had been filed, the juvenile defendant asserts that the juvenile court had jurisdiction over him and that jeopardy attached when the juvenile court accepted his guilty plea, thus precluding the court from vacating said plea. See Pettis v. State, 803 So.2d 903, 904 (Fla. 1st DCA 2002) (jeopardy attached when the trial court unconditionally accepted defendant’s nolo contendere plea pursuant to plea bargain). If the juvenile defendant was placed in jeopardy in the juvenile court, then the defendant could not be subsequently tried for the same offense as an adult. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Williams v. State, 742 So.2d 496 (Fla. 1st DCA 1999).

In a criminal context, subject matter jurisdiction is determined by the charge made in an indictment or information. State v. Vazquez, 450 So.2d 203 (Fla.1984); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972). Thus a criminal prosecution presupposes the existence of a valid charging document and such an accusatory pleading in some form is an essential requisite of jurisdiction which cannot be waived. State v. Anderson, 537 So.2d 1373 (Fla.1989); Caves v. State, 303 So.2d 658 (Fla. 2d DCA 1974). A judgment of conviction prior to presentment of a charging document is void because the court lacks subject matter jurisdiction. Chapman v. Stubbs, 109 Fla. 192, 147 So. 227 (1933).

The defendant relies on case law holding that in a juvenile context, the juvenile court acquires jurisdiction at the moment the juvenile is taken into custody. See D.C.W. v. State, 445 So.2d 333 (Fla.1984). In this case, the defendant was taken into custody when he was arrested pursuant to an arrest affidavit prepared by a police officer and the order to take into custody issued by the juvenile court. The defendant points out that section 985.219(8), Florida Statutes, provides:

The jurisdiction of the court shall attach to the child ... when the child is taken into custody with or without service of summons and before or after the filing of a petition whichever first occurs, and thereafter the court may control the child and the case in accordance with this part.

The juvenile court’s jurisdiction over the person of the child attaches when the child is taken into custody but a delinquency charge does not exist until a petition is filed. As the State points out, Florida Rule of Juvenile Procedure 8.030(a), governing commencement of formal proceedings, provides in relevant part that “[a]ll proceedings shall be initiated by the filing of a petition by a person authorized by law to do so.” Williams v. State, 742 So.2d 496 (Fla. 1st DCA 1999), reflects this requirement. In Williams, the First District held that a document entitled “direct-issue capias” set out under oath in the name of the state attorney, signed by an assistant state attorney and filed with the clerk, in which the state attorney alleged that the juvenile committed armed robbery, functioned as a petition for delinquency, conferring jurisdiction on the juvenile court to accept the juvenile’s plea of nolo contendere, to which jeopardy then attached.

In the instant case, no charging petition, whether labeled a delinquency petition or direct issue capias, prepared by a person authorized by law to do so, was filed prior to the time the defendant tendered his plea. The defendant’s claim that a detention affidavit filed by the Department of Juvenile Justice as a predicate for entry of the detention order is sufficient is without merit. The detention affidavit does not identify the specific charge against the defendant. It relates to the authority of the juvenile court to detain the juvenile pending the filing of formal charges. The trial court did not err in vacating the defendant’s plea where no charging document had been filed against the defendant by a person authorized by law to do so.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


text:
    Leroy Childs SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2805.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Affirmed. See Taylor v. State, 855 So.2d 1 (Fla.2003), cert. denied, — U.S. ——, 124 S.Ct. 1605, 158 L.Ed.2d 248 (2004); State v. Taplis, 684 So.2d 214 (Fla. 5th DCA 1996), review dismissed, 703 So.2d 453 (Fla.1997), both standing for the proposition that a party attempting to exclude otherwise relevant evidence on the basis of a gap in the chain of custody must show a likelihood or probability of tampering.

THOMPSON, MONACO, and TORPY, JJ., concur.


text:
    Jim Dean SECHRIST, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1074.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Jim Dean Sechrist, Gainesville, pro se.,
    No Appearance for Respondent.
   PER CURIAM.

Sechrist petitions this court for a belated appeal, seeking habeas corpus relief on the grounds that the trial court failed to give him proper credit on his sentence, and that his sentence is excéssive. However, the remedy of habeas corpus is not a proper remedy because Sechrist does not, claim he is entitled to immediate release and there are other adequate post-conviction remedies. See Fla. R.Crim. P. 3.850(h).

Accordingly, we dismiss this petition without prejudice to Sechrist to seek relief pursuant to Florida Rule of Criminal Procedure 3.850 or 3.800(a), if appropriate.

DISMISSED.

SHARP, W., PETERSON and ORFINGER, JJ., concur.