DWAYNE LAMAR JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1998-08-21
No. 96-03760
PARKER, C.J., and GREEN, J., concur.
716 So. 2d 332 Florida District Court of Appeal, Second District (1998) Caution
Cited by 8 cases

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Synopsis

Dwayne Johnson appeals his classification as a sexual predator under Florida's Sexual Predators Act based on his guilty plea to attempted sexual battery on children. The Second District Court of Appeal affirms, holding that attempted capital sexual battery constitutes a qualifying offense under the Act despite being an attempt rather than a completed offense.


Holding

The Sexual Predators Act applies to convictions for attempted capital sexual battery because attempted capital sexual battery is a first-degree felony under Florida law, and the Act contains no distinction between attempted and completed offenses. The legislature's intent to include attempted offenses is evidenced by both the statutory language and a subsequent 1998 amendment that explicitly added attempt to the list of qualifying offenses.


Headnotes

[1] A conviction for attempted capital sexual battery qualifies as a first-degree felony for the purposes of the Sexual Predators Act.

[2] The Sexual Predators Act applies to offenders convicted of, or pleading guilty or nolo contendere to, attempted capital, life, or first-degree felony violations of the se…

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Key Quotes

“The legislature made no distinction between attempted and completed offenses in the Act. Instead, section 775.23(2)(a) defines a sexual predator as an offender who is convicted of, or pleads nolo contendere or guilty to, any capital, life, or first-degree felony violation of chapter 794 or section 847.0145, Florida Statutes (1993).”

Establishes that the Sexual Predators Act applies to both attempted and completed offenses based on statutory language

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Facts & Procedural History

Johnson was originally charged with one count of lewd and lascivious act upon a child and four counts of capital sexual battery. On October 31, 1995, …

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Dwayne Lamar Johnson appeals the trial court’s order classifying him as a sexual predator pursuant to section 775.21-23, Florida Statutes (1993), the Sexual Predators Act (“Act”). We affirm because the attempted sexual battery to which Mr. Johnson pleaded guilty was a first-degree felony.

Mr. Johnson was originally charged with one count of lewd and lascivious act upon a child and four counts of capital sexual battery.

On October 31, 1995, he pleaded guilty to one count of lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1993), and two counts of attempted sexual battery on children under twelve years of age.

On July 31, 1996, the State filed a motion for a written finding of sexual predator status based on the convictions for attempted sexual battery.1 On August 20, 1996, the trial court granted the State’s request and classified Mr. Johnson as a sexual predator. Mr. Johnson argues that the Sexual Predators Act should not apply in his case because he was adjudicated guilty of attempted sexual battery, and not a completed offense.2 We disagree. The legislature made no' distinction between attempted and completed offenses in the Act. Instead, section 775.23(2)(a) defines a sexual predator as an offender who is convicted of, or pleads nolo contendere or guilty to, any capital, life, or first-degree felony violation of chapter 794 or section 847.0145, Florida Statutes (1993).

Attempted capital sexual battery is a first-degree felony. See §§ 777.04(4)(c), 794.011(2)(a), Fla. Stat. (1993).

Although chapter 777 defines the offense of criminal attempt, that chapter acts in conjunction with other statutes to create criminal offenses.

We conclude that the role of chapter 777 does not prevent attempted capital sexual battery from-being a “violation of chapter 794” for purposes of the Act.

We note that the Sexual Predators Act was revised once again by the 1998 legislature. See eh. 98-81, Laws of Fla. (1998). The legislature added attempt to commit a capital, life, or first-degree felony violation of the sexual battery chapter to the list of qualifying offenses. See ch. 98-81, § 3, Laws of Fla. (1998).

We conclude that this amendment merely expresses what had previously been the legislature’s clear intent. See State ex rel. Szabo Food Servs., Inc. v. Dickinson, 286 So. 2d 529, 531 (Fla.1973).

Even if we assume that this statute must be given a strict construction in favor of the defendant, we are not required to interpret the statute “so strictly as to emasculate the statute and defeat the obvious intention-of the legislature.” State v. Brigham, 694 So. 2d 793, 798 (Fla. 2d DCA 1997) (citing State ex rel. Washington v. Rivkind, 350 So. 2d 575, 577 (Fla. 3d DCA 1977)).

A conviction for capital sexual battery has long resulted in a life sentence and, since October 1, 1995, results in a sentence of life without possibility of parole. See, e.g., § 775.082(1), Fla. Stat. (1995).

The express legislative intent of the Sexual Predators Act is to protect children from predators who are released from prison. See § 775.21(3).

Thus, the act has little, if any, practical effect for prisoners convicted of capital sexual battery because such offenders will spend all or most of their lives in prison. It is obvious that the legislature has always intended for the Sexual Predators Act to apply to persons convicted of attempted capital sexual battery because such offenders are not subject to life imprisonment and are released into the community despite the threat that they pose to children.

Affirmed.

PARKER, C.J., and GREEN, J., concur. . Because Mr. Johnson h^s no prior record, he cannot be classified as a sexual predator baséd on his violation of section 800.04. See § 775.22(2)(b), Fla. Stat. (1993).

. Mr. Johnson makes two additional arguments related to the Sexual Predators Act. We do not address these issues because they have been previously addressed in Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998).


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Cited By

  • State v. Ellis D. Colley, 744 So. 2d 1172 (Fla. 2d DCA 1999)
    …3(2)(a), Florida Statutes (1993), because the offense to which he pleaded was a first-degree felony violation of chapter 794. The fact that Mr. Colley pleaded to an attempt does not prevent his designation as a sexual predator. See Johnson v. State, 716 So. 2d 332 (Fla. 2d DCA 1998). Likewise, the fact [*1174] that the offense to which he pleaded is a first-degree felony only because it was reclassified under section 775.04 does not prevent his designation as a sexual predator. The pertinent inquiry under for…
  • Nicholas v. State, 844 So. 2d 826 (Fla. 5th DCA 2003)
    …ade a determination regarding whether Nicholas had any qualifying previous convictions. If, indeed, he has no such qualifying offenses in his history, then Nicholas is not eligible for the designation, and it should be removed. See Johnson v. State, 716 So. 2d 332 (Fla. 2d DCA 1998). We conclude that the designation of Nicholas as a sexual predator must be reversed and remanded for a hearing, upon proper notice, to allow the State to demonstrate by competent evidence that Nicholas is qualified for the design…
  • Shingleton v. State, 759 So. 2d 713 (Fla. 2d DCA 2000)
    …hat his counsel failed to advise him that he would be classified as a sexual predator even if convicted. However, Shingleton would have been classified as a sexual predator if he had pleaded to attempted capital sexual battery. See Johnson v. State, 716 So. 2d 332 (Fla. 2d DCA 1998). Therefore, this claim is without merit. Shingleton’s last claim is that he was not given the opportunity to be present at a bench conference during voir dire in which the court and counsel discussed a juror who expressed a probl…

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