HILTON ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's reclassification of Allen's sexual battery offense from second degree to first degree felony under section 794.023 because he was not charged as a perpetrator under that statute, but declined to address the erroneous sexual predator designation due to lack of timely appeal.
A trial court errs in reclassifying a sexual battery offense from second degree to first degree felony under section 794.023 when the defendant was not charged as a perpetrator pursuant to that statute.
[1] A defendant cannot be reclassified under section 794.023 from second degree to first degree felony for sexual battery unless charged as a perpetrator under that statute.
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Join FLexlaw to unlock all legal intelligenceHilton Allen was convicted of sexual battery and sentenced based on a trial court reclassification of his offense from a second degree felony to a fir…
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PER CURIAM.
Hilton Allen appeals the sentence imposed after his conviction for sexual battery, contending that the trial court erred in reclassifying his offense from a second degree felony to a first degree felony pursuant to section 794.023, Florida Statutes (2004), since he was not charged as a perpetrator pursuant to that statute. We agree that his reclassification was improper. Allen v. State, 982 So. 2d 1280 (Fla. 1st DCA 2008).
Subsequent to sentencing and after the notice of appeal was filed, upon motion by the state the trial court determined that, because appellant’s offense had been reclassified pursuant to section 794.023 to a first degree felony, section 775.21(4)(a)l.a. required him to be designated as a sexual predator. While the state agrees that the sexual predator designation is erroneous, see Shepherd v. State, 912 So. 2d 1250 (Fla. 2d DCA 2005), we cannot reach the issue because appellant did not file a timely notice of appeal or amended notice of appeal from the order designating him a sexual predator. Velickovich v. Ricci, 391 So. 2d 258 (Fla. 4th DCA 1980). Appellant’s remedy is to file a separate civil action seeking injunctive and declaratory relief. Boyer v. State, 946 So. 2d 75, 76 (Fla. 1st DCA 2006).
REVERSED and REMANDED for further proceedings consistent with this opinion.
WEBSTER, VAN NORTWICK, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Momcilo Velickovich and Zorica Velickovich v. Ricci, 391 So. 2d 258 (Fla. 4th DCA 1980)
- Boyer v. State, 946 So. 2d 75 (Fla. 1st DCA 2006)
- Alexia Cuartas v. Fla. Unemployment Appeals Comm'n, 912 So. 2d 1250 (Fla. 1st DCA 2005)
- Owens v. State, 912 So. 2d 1250 (Fla. 1st DCA 2005)
- Allen v. State, 982 So. 2d 1280 (Fla. 1st DCA 2008)