WILLIAM HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Harvey appealed a summary denial of his rule 3.850 postconviction motion challenging his 1981 conviction and a purported sexual predator designation. The court affirmed the denial as untimely, while noting that any sexual predator designation would have occurred separately from his original 1982 sentence and would need to be challenged before the judge who made that designation.
The trial court's summary denial of the motion was affirmed as untimely. However, the court noted that if Harvey could establish he was actually designated a sexual predator and that the criteria were not met, such a challenge might be properly brought under rule 3.800(a) before the judge who made the designation, but not through a challenge to his original 1982 sentence since the statute did not exist then.
[1] A rule 3.850 motion for postconviction relief is untimely if filed after the judgment and sentence became final in 1983.
[2] A claim challenging a sexual predator designation may be considered under rule 3.800(a) if it is apparent from the face of the record that the criteria for the designatio…
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Join FLexlaw to unlock all legal intelligence“When a claim of a sexual predator designation error is made, the trial judge who made the designation is the one in the best position to evaluate the claim and to correct the error.”
Establishes the proper forum and procedure for challenging sexual predator designations
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Join FLexlaw to unlock all legal intelligenceHarvey was convicted in 1981 with judgment and sentence entered in 1982 in a case that became final in 1983. He filed a rule 3.850 motion decades late…
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William Harvey (Defendant) appeals from an order summarily denying his rule 3.850 motion for postconviction relief in connection with a 1981 case that became final in 1983. We affirm the trial court’s denial of the motion as untimely.
*891We issued an order to show cause whether Defendant might be entitled to reversal as to a portion of his third ground for relief, which was not addressed in the order of denial. There, he alleged that the trial court erred in finding him to be a sexual predator under section 775.21, Florida Statutes, without an opportunity to be heard or present argument that he did not qualify as a sexual predator. If we construe that as a claim that he did not qualify for the designation, untimeliness would not be a bar if the matter were considered pursuant to rule 3.800(a). See Saintelien v. State, 990 So.2d 494 (Fla.2008) (holding that a rule 3.800(a) motion may be used to challenge a sexual predator designation, but only when it is apparent from face of record that the criteria for the designation were not met).
The state’s response points out that Defendant did not show where in the record there is any substantiation that he was so designated. The motion specifically challenged Defendant’s conviction, judgment, and sentence entered in 1982, years before section 775.21 was enacted and became effective on October 1, 1993.1 If Defendant actually has been designated as a sexual predator,2 the order so designating him could not have been entered with his judgment and sentence in his 1981 case, but would have occurred in connection with his sentencing for a subsequent offense committed after section 775.21 became effective, or thereafter in whatever circuit he was residing when a law enforcement agency may have sought the designation. Compare § 775.21(4) & (5), Fla. Stat. (2008).
“When a claim of a sexual predator designation error is made, the trial judge who made the designation is the one in the best position to evaluate the claim and to correct the error.” Nicholson v. State, 846 So.2d 1217, 1219 (Fla. 5th DCA 2003) (quoted approvingly by Saintelien, 990 So.2d at 496). There would be no way to determine from Defendant’s criminal record in his 1981 case that the criteria were not met.
Affirmed.
WARNER, STEVENSON and TAYLOR, JJ., concur.
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Gosling v. State, 97 So. 3d 287 (Fla. 4th DCA 2012)…the enumerated Florida offenses it would have said so, pointing to the fact that in subsection (l)(a)l.a., the legislature did just that. The State insists we have already decided this issue adversely to the defendant, relying upon Harvey v. State, 17 So. 3d 890 (Fla. 4th DCA 2009). Harvey, though, stands only for the proposition that, in Florida, there is a distinction to be made between a “sexual predator” and a “sexual offender.” While section 775.21, Florida Statutes, expressly requires the Florida cour…
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Obtravies Andre Watkins v. State, 57 So. 3d 986 (Fla. 5th DCA 2011)…exual offender pursuant to section 943.0435, Florida Statutes. However, that section “contains no provision for a court order designating offenders as sexual offenders; they attain that status merely by virtue of then’ convictions.” Harvey v. State, 17 So. 3d 890, 891 n. 2 (Fla. 4th DCA 2009). Accordingly, we reverse that portion of the order that designates Appellant a sexual predator and remand with instructions that the designation be stricken from the judgment. REVERSED AND REMANDED. PALMER, TORPY…
Authorities Cited
- Renoit Saintelien v. State, 990 So. 2d 494 (Fla. 2008)
- Moreland Nicholson v. State, 846 So. 2d 1217 (Fla. 5th DCA 2003)