THOMAS DOWNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Downs appeals a trial court order designating him a sexual predator under Florida law. The appellate court dismisses the appeal as untimely, but clarifies that sexual predator designation orders are subject to direct appeal under Florida appellate rules.
Orders entered pursuant to section 775.21 designating a defendant a sexual predator are subject to direct appeal under Florida Rule of Appellate Procedure 9.140(b)(1)(C). However, Downs failed to timely file a notice of appeal directed to the sexual predator order within thirty days of its entry, requiring dismissal of the appeal.
[1] Orders designating a defendant a sexual predator pursuant to section 775.21, Florida Statutes, are appealable orders entered after final judgment or finding of guilt.
[2] A notice of appeal from an order designating a defendant a sexual predator must be filed within thirty days of the order's rendition.
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Establishes that sexual predator designation orders are subject to direct appeal under Rule 9.140(b)(1)(C)
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Join FLexlaw to unlock all legal intelligenceDowns was charged with kidnapping and three counts of sexual battery occurring on April 30, 1995. He entered a guilty plea on April 16, 1996, with jud…
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FULMER, Judge.
The defendant, Thomas Downs, Jr., challenges the trial court’s order designating him a sexual predator pursuant to section 775.21, Florida Statutes (Supp.1996). We dismiss this appeal as untimely. However, we write to explain our dismissal and to clarify the procedures for appeals taken from orders entered pursuant to section 775.21.
Downs was charged with one count of kidnapping and three counts of sexual battery, alleged to have occurred on April 30, 1995. On April 16,1996, he entered a plea of guilty. The written judgment adjudicating him guilty was entered the same day. On April 25, 1996, the written sentence was entered. On May 17, 1996, Downs’ trial counsel filed a notice of appeal. The record was transmitted to this court on June 13,1996.
On August 8, 1996, the State filed its Notice of Hearing to Declare the Defendant a Sexual Predator. On August 21, 1996, more than three months after Downs filed his notice appealing the judgment and sentence, a hearing was held before the trial court. The entire transcript of that proceeding reads:
[PROSECUTOR]: Thomas Downs was convicted of a first-degree sexual battery offense with an offense date of April 30, 1995, therefore not subject to the public notice requirement.
THE COURT: I’ll remove the public defender of further representation of Mr. Downs on this particular motion. And pursuant to his conviction Mr. Downs qualifies as sexual predator status.
[DEFENSE COUNSEL]: Thank you, Judge.
The trial court entered its order designating Downs a sexual predator on August 23, 1996.
On October 1, 1996, Downs filed a motion to supplement the appellate record with a transcript of the August 21, 1996, hearing. The motion was granted. The appellate record was also supplemented a second time, on this court’s order, with the trial court’s August 23, 1996, order designating Downs a sexual predator. Downs’s counsel never filed an amended notice of appeal of the sexual predator order. The State argues that the trial court’s sexual predator order is not subject to direct appeal because the issue raised pertains to a collateral ministerial act which must be reviewed by petition for certiorari. We disagree. Florida Rule of Appellate Procedure 9.140(b)(1)(C) provides that a defendant may appeal “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both.” We conclude that orders entered pursuant to section 775.21 are encompassed by this rule.
However, we must dismiss this appeal because Downs failed to timely file a notice of appeal directed to this postjudgment order. Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2), the thirty-day time period for appealing this order expired on September 23,1996. We considered treating the motion to supplement as a notice of appeal. However, that motion was filed more than thirty days after the order was rendered and would, therefore, be an untimely notice of appeal.
Because no other issues were raised in the briefs, we dismiss this appeal.
BLUE, A.C.J., and WHATLEY, J., concur.
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State v. Robinson, 873 So. 2d 1205 (Fla. 2004)…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 co…
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Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004)…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). Robinson, 873 So. 2d at 1208-09.3 The provisions of section 775.21 and the holding in Robinson are significant because the Legislature and the court considered designation proceedings criminal in nature, with any resulti…
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Wilson v. State, 846 So. 2d 1220 (Fla. 5th DCA 2003)…, 2003, Wilson served his notice of appeal. Because Wilson filed his notice of appeal more than 30 days after the trial court rendered its order denying the motion to mitigate, the appeal is not timely. See Fla. R.App. P. 9.140(3); Downs v. State, 700 So. 2d 789 (Fla. 2d DCA 1997). Even if the notice had been timely filed, we note that an order denying a defendant’s motion to mitigate sentence is a non-appeal-able order. See Adams v. State, 800 So. 2d 741 (Fla. 5th DCA 2001). DISMISSED. THOMPSON, C.J.,…
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