FRANCIS MICHAEL NICHOLAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francis Michael Nicholas appeals a trial court's order designating him as a sexual predator. The appellate court reversed because Nicholas was denied notice and a hearing before the designation was imposed, and the record does not reflect that the trial court determined whether Nicholas had qualifying prior convictions required by statute.
The designation of Nicholas as a sexual predator must be reversed and remanded for a hearing upon proper notice. The trial court must allow the State to demonstrate by competent evidence that Nicholas qualifies for the designation and allow Nicholas to contest it. If Nicholas lacks qualifying prior convictions, the designation should be removed.
[1] A sexual predator designation requires a hearing upon proper notice to the defendant.
[2] A defendant must have the opportunity to contest a sexual predator designation.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 775.21(4)(a)l, Florida Statutes (2001), provides that when the violation of § 800.04 is a second-degree felony, the defendant must have a previous conviction of certain enumerated offenses in order for the sexual predator designation to apply.”
Establishes the statutory requirement for qualifying prior convictions
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Join FLexlaw to unlock all legal intelligenceNicholas pled no contest to lewd and lascivious assault on a child under 16 and was sentenced to prison followed by probation. After violating probati…
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MONACO, J.
Francis Michael Nicholas appeals the written order of the trial court finding that he is a sexual predator. As he was denied a hearing on this issue, we reverse.
Nicholas pled no contest to a single count of lewd and lascivious assault on a child under 16 in violation of section 800.04, Florida Statutes (2001), and was sentenced to prison, followed by probation. Upon release from prison, Nicholas violated probation and was sentenced to an additional prison term. About two months later, the State filed a motion with the trial court requesting written findings that Nicholas is a sexual predator. The following day and without a hearing or notice to Nicholas, the trial court executed a written order finding Nicholas to be a sexual predator. Section 775.21(4)(a)l, Florida Statutes (2001), provides that when the violation of § 800.04 is a second-degree felony, the defendant must have a previous conviction of certain enumerated offenses in order for the sexual predator designation to apply. See Garcia v. State, 827 So. 2d 1102 (Fla. 2d DCA 2002). Moreover, if the defendant has a qualifying previous conviction, the defendant must not have been pardoned or the conviction set aside.
Nicholas asserts in this appeal, and his sentencing scoresheet appears to support him, that he has no qualifying prior convictions. He has not had the opportunity to assert this position in the trial court because he had no notice of the motion seeking sexual predator designation, and the designation was made without a hearing. In addition, nothing in the record reflects that the trial court made 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 designation, and to allow Nicholas to contest that designation.
REVERSED and REMANDED.
PETERSON and ORFINGER, JJ„ concur.
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Moreland Nicholson v. State, 846 So. 2d 1217 (Fla. 5th DCA 2003)…gal "sentence”, does not apply to a "sexual predator" designation. Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997). . We have already taken the view that the issue is subject to review in the criminal case by direct appeal. Nicholas v. State, 844 So. 2d 826 (Fla. 5th DCA 2003).…
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Kidd v. State, 855 So. 2d 1165 (Fla. 5th DCA 2003)…ase. The designation requirements of the statute are set forth in section 775.21(4)(a)l.b. This subsection requires proof of a prior felony conviction or plea to a prior felony before designating a defendant a sexual predator. See Nicholas v. State, 844 So. 2d 826 (Fla. 5th DCA 2003). Kidd filed a pro se motion to correct his sentence regarding the impropriety of the sexual predator designation within the time required for filing motions pursuant to Florida Rule of Criminal Procedure [*1168] 8.800(b). The tr…
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Meyers v. State, 884 So. 2d 219 (Fla. 2d DCA 2004)…und to have committed, or pled nolo contendere or guilty to, regardless of adjudication, any of certain statutorily enumerated offenses. § 775.21(4)(a)(1)(b), Fla. Stat. (2001); Garcia v. State, 827 So. 2d 1102 (Fla. 2d DCA 2002); Nicholas v. State, 844 So. 2d 826 (Fla. 5th DCA 2003). The State admits that Meyers did not have the required previous offense. Therefore, we reverse the trial court’s order and remand with directions to remove the sexual predator designation. Our reversal of the trial court’s ord…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 716 So. 2d 332 (Fla. 2d DCA 1998)
- Lionardo Garcia v. State, 827 So. 2d 1102 (Fla. 2d DCA 2002)