BRIAN KINGRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Kingry appealed the denial of his motion challenging his sexual predator designation, arguing he did not legally qualify for it. The court affirmed, holding that because sexual predator designation is a status rather than punishment, Kingry waived his right to challenge it by agreeing to it as part of his plea bargain.
A defendant who agrees to a sexual predator designation as part of a plea bargain cannot later challenge the designation by claiming he does not qualify, because a sexual predator designation is a status, not a sentence or punishment, and the defendant waives the right to complain about conditions he has voluntarily accepted as part of a binding plea agreement.
[1] A defendant may not challenge the legality of a sexual predator designation when it was expressly agreed to as part of a plea bargain.
[2] A sexual predator designation is considered a status, not a sentence or punishment, and therefore is not subject to the rules governing illegal sentences.
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Join FLexlaw to unlock all legal intelligence“a sexual predator designation is 'neither a sentence nor a punishment but simply a status....'”
Establishes the legal nature of sexual predator designation, distinguishing it from traditional sentences and punishments
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Join FLexlaw to unlock all legal intelligenceKingry was charged with four counts of lewd or lascivious battery on a minor, each a second-degree felony punishable by up to 15 years in prison. He n…
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Appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, appellant complained that, at his sentencing, he had been designated a sexual predator pursuant to section 775.21, Florida Statutes (2002), although he did not qualify for such a designation, and that the designation was, therefore, illegal. The trial court denied the motion on the ground that appellant had waived the right to complain about his designation as a sexual predator because it was clear from the record that appellant had agreed to that designation as a part of his plea bargain. We agree with the trial court and, accordingly, affirm.
Appellant had been charged with four counts of lewd or lascivious battery on a person 12 or older, but less than 16, in violation of section 800.04(4)(a), Florida Statutes (2001). Each charge was a second-degree felony, punishable by up to 15 years in prison. Appellant ultimately negotiated a plea agreement, pursuant to which he would plead no contest to the four counts, be adjudicated guilty on all counts, and be sentenced to 24 months of community control to be followed by 120 months of probation. Appellant also agreed to a sexual predator designation.
On appeal, appellant argues that he did not qualify as a sexual predator and, therefore, his designation as such constituted an illegal sentence, and he could not agree to an illegal sentence. We disagree. Our supreme court has said that “a sexual predator designation is ‘neither a sentence nor a punishment but simply a status....’” Saintelien v. State, 990 So.2d 494, 496 (Fla.2008) (quoting from section 775.21(3)(d), Florida Statutes (2003)). Because such a designation is “neither a sentence nor a punishment,” appellant’s agreement to be so designated is not con*174trolled by those cases which hold that one may not agree to an illegal sentence. See, e.g., Mobley v. State, 939 So.2d 213, 214 (Fla. 1st DCA 2006). Rather, it is controlled by cases such as Ackermann v. State, 962 So.2d 407, 408 (Fla. 1st DCA 2007) (stating that a defendant cannot be sentenced to drug offender probation unless he agrees to such as part of his plea bargain). See also Allen v. State, 642 So.2d 815, 816 (Fla. 1st DCA 1994) (because an agreement to reimburse the county’s medical expenses was a part of appellant’s plea bargain, he could not challenge the legality of his obligation to pay those expenses); Pollock v. Bryson, 450 So.2d 1183, 1186 (Fla. 2d DCA 1984) (while, ordinarily, a trial court may not require as a condition of probation that a defendant pay restitution in excess of the amount of damage his criminal conduct caused the victim, a defendant is estopped to raise such a complaint when he has expressly agreed to such a provision as a part of his plea bargain); Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) (“[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements”). It is apparent from the record that appellant’s agreement to a sexual predator designation was a bargained-for part of the plea agreement. Having freely and voluntarily entered into the agreement and accepted its benefits, appellant may not now seek to be relieved of one of the burdens imposed upon him pursuant to the agreement. E.g., Allen, 642 So.2d at 816. The trial court’s order is affirmed.
AFFIRMED.
WOLF and THOMAS, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Motes v. State, 129 So. 3d 446 (Fla. 1st DCA 2013)…that clause, and the trial court confirmed the clause’s existence and accepted the agreement which included it. The clause, however, was patently erroneous. Plea bargains are contracts and are subject to the rules of contract law. Kingry v. State, 28 So. 3d 173, 174 (Fla. 1st DCA 2010). Appellant was thus entitled to rely upon the written agreement, his counsel, and the court’s confirmation. See Carlisle v. State, 687 So. 2d 929, 930 (Fla. 4th DCA 1997) (holding trial court reversibly erred in not permitti…
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Frandi v. State, 244 So. 3d 1180 (Fla. 1st DCA 2018)…dator designation as part of the negotiated plea agreement. Because this designation is not a sentence or a punishment, Appellant was not precluded from agreeing to the designation even if he did not qualify under the statute. See Kingry v. State, 28 So. 3d 173, 174 (Fla. 1st DCA 2010). And, because Appellant has received the benefits of the plea agreement,2 he cannot now seek to be relieved of one of the burdens imposed on him by the agreement. Id. Second, in order to be designated a sexual predator pu…
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Contreras-Garcia v. State, 95 So. 3d 993 (Fla. 2d DCA 2012)…, see § 775.21(4)(a)(l), Fla. Stat. (2009), a defendant may agree to be designated as a sexual predator as a bargained-for part of a plea agreement, even if his conviction does not qualify for such designation under the statute. See Kingry v. State, 28 So. 3d 173, 174 (Fla. 1st DCA 2010).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998)
- Renoit Saintelien v. State, 990 So. 2d 494 (Fla. 2008)
- Allen v. State, 642 So. 2d 815 (Fla. 1st DCA 1994)
- Ackermann v. State, 962 So. 2d 407 (Fla. 1st DCA 2007)
- Fisher v. Fisher, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Pollock v. Honorable Fred L. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Mobley v. State, 939 So. 2d 213 (Fla. 1st DCA 2006)