MICHAEL A. ROGERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2010-04-26
No. 1D08-4234
KAHN, DAVIS, and THOMAS, JJ., concur.
33 So. 3d 805 Florida District Court of Appeal, First District (2010) Positive Treatment
Cited by 12 cases

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Synopsis

Michael Rogers appeals his conviction for capital sexual battery of a child under 12, challenging his designation as a sexual predator and the restitution order. The appellate court affirmed the conviction and sexual predator designation but reversed the restitution order on jurisdictional grounds, finding the trial court lacked jurisdiction to enter the written restitution order after Rogers filed his notice of appeal.


Holding

The trial court retained jurisdiction to enter the sexual predator designation order because such designation is a collateral, ministerial, and procedural matter that does not interfere with appellate review of the judgment and sentence. However, the trial court lacked jurisdiction to enter the written restitution order because the filing of the notice of appeal divested it of jurisdiction over that matter.


Headnotes

[1] A conviction for capital sexual battery mandates designation as a sexual predator.

[2] The designation of a person as a sexual predator is a status resulting from conviction, not a sentence or punishment.

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Key Quotes

“The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.”

Establishes that sexual predator designation is a collateral status matter, not part of the sentence, supporting the court's finding that the trial court retained jurisdiction to enter the designation order.

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Facts & Procedural History

Rogers was convicted of capital sexual battery on a child under 12 years of age on August 14, 2008, and sentenced to life imprisonment without parole.…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Michael A. Rogers (appellant) appeals his conviction of one count of capital sexual battery on D.B., a child under 12 years of age, by a defendant age 18 or older, in violation of section 794.011(2)(a), Florida Statutes (2004). Appellant also challenges the trial court’s orders designating him a “sexual predator” and imposing restitution. Because the record demonstrates neither a misapplication of the law nor an abuse of discretion by the trial court in ruling on evidentiary matters, we affirm the conviction without further discussion. We also affirm the order designating appellant a sexual predator. We reverse the restitution order on jurisdictional grounds and remand that issue.

After adjudicating appellant guilty on August 14, 2008, the trial court sentenced appellant to life in prison without eligibility for parole. At the State’s request, the court orally designated appellant a “sexual predator” under section 775.21, Florida Statutes (2008), without a contemporane*806ous objection. Upon the State’s further request, the court orally ordered restitution, reserving jurisdiction to determine the appropriate payees and amounts once the State presented specific evidence. Appellant appealed on August 27, 2008. On September 3, 2008, the trial court entered written orders finding appellant’s conviction was for a qualifying offense, designating appellant a sexual predator, and imposing $468.00 in restitution. On May 19, 2009, appellant filed a rule 3.800(b)(2), Florida Rules of Criminal Procedure, motion to strike the sexual predator classification order and restitution order on the ground his filing the notice of appeal divested the trial court of jurisdiction over these matters before the issuance of the written orders. The court denied the motion.

We review de novo the issue of law whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its pri- or oral pronouncements on appellant’s designation as a sexual predator and restitution. See Lande v. Lande, 2 So.3d 378, 380 (Fla. 4th DCA 2008). On the matter of “sexual predator” classification, appellant does not contend he is ineligible. Indeed, his conviction of a capital felony under chapter 794, Florida Statutes (2004), mandated his designation as a sexual predator. See § 775.21(4)(a)l., Fla. Stat. He bases his challenge solely on the jurisdictional argument and on Schardt v. State, 10 So.3d 139 (Fla. 2d DCA 2009), a materially distinguishable case in which the State conceded error in the initial designation of Schardt as a sexual predator. “The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” § 775.21(3)(d), Fla. Stat.; Kelly v. State, 795 So.2d 135, 138 (Fla. 5th DCA 2001). The circuit court has concurrent jurisdiction with the district court of appeal to decide a “collateral, ministerial and procedural matter” under rule 9.600(a), Florida Rules of Appellate Procedure. We conclude the trial court correctly denied appellant’s challenge to the mandatory sexual predator classification under rule 9.600(a) and Breitberg v. State, 14 So.3d 1253 (Fla. 4th DCA 2009).

The trial court did not have the benefit of the Breitberg decision, which was issued a month after the denial of appellant’s motion to strike the designation. Even so, the trial court’s ruling is consistent with the analysis of this issue in Breitberg. As in appellant’s case, Breit-berg made no claim he did not meet the statutory criteria for designation as a sexual predator. See id. at 1254. Instead, Breitberg sought to void his sexual predator designation because the trial court entered the order after he filed a notice of appeal from his qualifying judgment and sentence. After determining Breitberg’s record did not facially establish that his case fell within the narrow rule in Saintelien v. State, 990 So.2d 494, 495 (Fla.2008), allowing a rule 3.800(a) movant to challenge his sexual predator classification, the Fourth District Court directly addressed the jurisdictional challenge and concluded the filing of the notice of appeal did not divest the trial court of jurisdiction to designate Breitberg a sexual predator. See Breitberg, 14 So.3d at 1254-55. In Kimmel v. State, 629 So.2d 1110, 1111 (Fla. 1st DCA 1994) (order on appellee’s motion to dismiss), we acknowledged “[t]he general rule is that an appeal of an order divests the trial court of jurisdiction except for those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal.” Citing Kimmel, the court in Breitberg determined that because sexual predator classification is not “a sentence or punish-*807raent” under the “sexual predator” statute and Saintelien, the designation order would not interfere with the appellate court’s power to dispose of issues relating to the judgment and sentence. Thus, the filing of Breitberg’s, and likewise appellant’s, notice of appeal did not divest the trial court of jurisdiction to issue a designation order. See 14 So.3d at 1254-55. Appellant can show no error in the denial of this part of his rule 3.800(b)(2) motion.

In challenging the trial court’s jurisdiction to enter the written restitution order after the filing of the notice of appeal, appellant properly relies on the similar facts in Pearson v. State, 686 So.2d 721 (Fla. 2d DCA 1997). There, the court held Pearson’s notice of appeal, after the trial court reserved jurisdiction on the amount of restitution, divested the trial court of jurisdiction to enter a restitution order. Pearson observed that on remand, the trial court could conduct another hearing and re-impose restitution. See id. at 721-22; see also Horan v. State, 990 So.2d 1264 (Fla. 1st DCA 2008) (stating the filing of the notice of appeal divested the trial court of jurisdiction to enter an order determining restitution, reversing the restitution order, and remanding with an acknowledgment the trial court could hold another restitution hearing). The State’s answer brief neither cites Pearson or Horan nor attempts to distinguish their consistent holdings. We reverse the restitution order on jurisdictional grounds, recognizing that upon remand returning jurisdiction to the lower tribunal, the court may revisit the subject of restitution and (if necessary to resolve any factual disputes involving the amount) hold a restitution hearing.

We AFFIRM the judgment and sentence and the order designating appellant a sexual predator; we REVERSE the restitution order and REMAND the matter to the trial court.

KAHN, DAVIS, and THOMAS, JJ., concur.


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Citator

Cited By

  • Terry v. State, 263 So. 3d 799 (Fla. 4th DCA 2019)
    …tion to correct a sentencing error is de novo. Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009). The standard of review regarding a trial court’s exercise of case jurisdiction while an appeal is pending is de novo. See Rogers v. State, 33 So. 3d 805, 806 (Fla. 1st DCA 2010) (applying de novo review regarding “whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its prior oral pronouncements”). Regarding his sentence, App…
  • Guelmer J. Escobar v. State, 189 So. 3d 1029 (Fla. 4th DCA 2016)
    …urt....” Fla. ,R. App. P. 9.600(a). This rule allows the trial court to complete ministerial tasks before the transmission of, the record. It allowed for the trial court to reduce its oral pronouncements to writing in this case. In Rogers v. State, 33 So. 3d 805 (Fla. 1st DCA 2010), the First District held that the defendant’s filing of a notice of appeal did not divest the trial court of jurisdiction to enter a written order “memorializing its prior oral pronounceméát[ ] on appellant’s designation as a sex…
  • Stowe v. State, 66 So. 3d 1015 (Fla. 1st DCA 2011)
    …l prohibitions against double jeopardy. We accept this contention, reverse the convictions and sentences that constitute double jeopardy, and remand for resen-tencing on the remaining convictions. But we reject — on the authority of Rogers v. State, 33 So. 3d 805, 806 (Fla. 1st DCA 2010)—appellant’s argument that the trial court did not have jurisdiction, pursuant to section 943.0435, Florida Statutes (2006), to designate him a sexual offender. Mr. Stowe was charged with eighteen counts of possession of chi…

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