MICHAEL DONOVAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Michael Donovan petitioned for a writ of habeas corpus seeking a belated appeal of a trial court's denial of his Rule 3.850 motion to vacate his 1995 nolo contendere plea for sexual battery. The court granted the belated appeal but affirmed the trial court's denial on the merits, rejecting Donovan's argument that sex offender registration requirements were direct consequences of his plea that should have been disclosed.
Sex offender registration requirements are collateral consequences of a plea, not direct consequences, and therefore do not need to be disclosed during plea colloquies. A defendant cannot vacate a plea based on the failure to disclose such collateral consequences. The trial court properly denied Donovan's motion to vacate because his plea was entered knowingly and voluntarily with understanding of the direct consequences.
[1] A defendant is entitled to a belated appeal when their attorney fails to timely file the appeal.
[2] A defendant's claim that they would not have entered a plea if they had known about future statutory reporting requirements does not render the plea unknowing or involunt…
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Join FLexlaw to unlock all legal intelligence“trial judge is required to inform a defendant only of the direct consequences of his plea”
Establishes the governing standard that collateral consequences need not be disclosed at plea colloquy
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Join FLexlaw to unlock all legal intelligenceDonovan entered a nolo contendere plea to sexual battery in May 1995, received a withheld adjudication and five years probation. He violated probation…
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PER CURIAM.
Michael Donovan petitions for a writ of habeas corpus claiming he is entitled to a belated appeal of an order denying his Rule 3.850 motion to vacate plea and sentence because his attorney was late filing his appeal. We grant Donovan a belated appeal and affirm his case on the merits.
Donovan was charged in 1994 with sexual battery and entered a nolo contendere plea in May 1995. Adjudication was withheld and Donovan was sentenced to five years probation in June 1995. Donovan violated his probation in 1995, 1997 and 1999. Donovan never appealed any of his previous judgments and sentences. In 1999, Donovan claimed he would not have entered the 1995 plea if he had known he would be required to report to the FDLE as a convicted sex offender. The trial court conducted an evidentiary hearing and denied his motion.
On appeal Donovan contends that the Fourth District’s decision in State v. Wiita, 744 So. 2d 1232 (Fla. 4th DCA 1999) is dispositive. In that case, the trial court permitted a defendant, who entered a plea in 1991, to withdraw his plea in 1998. The court reasoned that the defendant’s claim that because section 943.0435, Florida Statutes, was not in effect at the time he entered his plea agreement, the reporting and publication requirements of the statute were neither contemplated nor made apart of his plea agreement. Based upon these facts, and his claim that he entered the plea because of his express wishes to avoid publicity for himself and his family, the court upheld the trial court’s decision to vacate his plea because it was not entered knowingly or voluntarily.
In Donovan’s case, the trial judge denied relief after an evidentiary hearing. The trial court found Wiita to be factually distinguishable and stated:
[Donovan] entered his no contest plea on May 11, 1995, pursuant to an agreement that provided for no incarceration and a withhold of adjudication on a sexual battery offense, punishable by a statutory maximum of fifteen (15) years incarceration. As a result, the Court finds that [Donovan’s] testimony that at the time that he entered his plea he gave no consideration to the fact that he would receive a withhold of adjudication and a nonincarcertative sentence totally incredible.
Appellate courts have concluded that being designated a “sexual predator” is a collateral consequence of a plea. See Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996) (provisions of §§ 775.21-.23, Florida Statutes (1993), were a “collateral consequence of the pleas which was not required to be covered in the plea colloquy”); see also LaMonica v. State, 732 So. 2d 1175 (Fla. 4th DCA 1999); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998) (sexual predator designation was collateral consequence of the guilty plea); State v. Fox, 659 So. 2d 1324, 1327 (Fla. 3d DCA 1995) (trial judge is required to inform a defendant only of the direct consequences of his plea).
The same conclusion has been reached about the lesser requirements of reporting as a “sexual offender” under section 943.0435, Florida Statutes. In Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000), the court held that the sexual offender statute was regulatory in nature. Therefore, the statute did not violate the ex post facto clause. The statute did not alter the definition of criminal conduct and did not constitute punishment.
PETITION GRANTED; AFFIRMED.
THOMPSON, C.J., and SAWAYA, J., concur. SHARP, W., J., concurs in result only, without opinion.
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Kelly v. State, 795 So. 2d 135 (Fla. 5th DCA 2001)…) and cert. denied, 525 U.S. 1058, 119 S.Ct. 624, 142 L.Ed.2d 563 (1998); Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997), rev. denied, 707 So. 2d 1124 (Fla.1998); see also Nelson v. State, 780 So. 2d 294 (Fla. 1st DCA 2001); Donovan v. State, 773 So. 2d 1264 (Fla. 5th DCA 2000). Thus the Legislature has declared the public policy of this state by enactment of the Act and it should be the responsibility of this court to enforce it. Griffin. In order to enforce and apply the provisions of the Act, the tr…
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Cella v. State, 831 So. 2d 716 (Fla. 5th DCA 2002)…r the trial court or his attorney, but that he was not specifically advised that he had to register under section 775.13. However, it is not necessary to advise a defendant of the registration requirement in order to accept a plea. Donovan v. State, 773 So. 2d 1264 (Fla. 5th DCA 2000) (affirming denial of motion to vacate plea upon claim that defendant would not have entered the plea had he known he would be required to report to FDLE as a convicted sex offender). Registration under section 775.13 is not a dir…1 / 2
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Nelson v. State, 780 So. 2d 294 (Fla. 1st DCA 2001)…icts which hold that a defendant need not be informed of these designations before entering a plea, because they are collateral, rather than direct, consequences resulting from his convictions of certain sexual offenses. See, e.g., Donovan v. State, 773 So. 2d 1264 (Fla. 5th DCA 2000); Pearman v. State, 764 So. 2d 739 (Fla. 4th DCA 2000); Oce v. State, 742 So. 2d 464 (Fla. 3d DCA 1999), cause dismissed, 763 So. 2d 1044 (Fla.2000); LaMonica v. State, 732 So. 2d 1175 (Fla. 4th DCA 1999); Burkett v. State, 731 So…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998)
- State v. A.J. FOX, 659 So. 2d 1324 (Fla. 3d DCA 1995)
- State v. Wiita, 744 So. 2d 1232 (Fla. 4th DCA 1999)
- Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000)
- LaMONICA v. State, 732 So. 2d 1175 (Fla. 4th DCA 1999)
- Fagundo v. State, 667 So. 2d 476 (Fla. 3d DCA 1996)
- Sigifredo Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996)