ROBERT GRAHAM BISHOP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Bishop appeals the trial court's denial of his motion to strike his sexual predator designation. The court affirmed the designation, holding that while Bishop should have received a hearing before designation, he failed to timely appeal and must pursue postconviction relief to challenge whether his prior New Jersey conviction qualifies as a predicate offense.
The court affirmed the designation, holding that while a defendant is entitled to a hearing before sexual predator designation, Bishop should have appealed his designation timely rather than filing a motion to remove it two months later. Because the record does not disclose which New Jersey statute Bishop violated, the propriety of the designation cannot be determined from the face of the record, and Bishop's remedy lies in a timely motion for postconviction relief.
[1] A motion to strike a sexual predator designation may be considered under Florida Rule of Criminal Procedure 3.800(a) only when the defect in the designation is apparent f…
[2] A defendant is entitled to a hearing before a sexual predator designation can be imposed to allow the court to make findings regarding the existence of a qualifying prior…
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“Bishop's challenge to his sexual predator designation may be considered pursuant to Florida Rule of Criminal Procedure 3.800(a) if the defect is apparent from the face of the record.”
Establishes the standard for challenging sexual predator designation on appeal—the defect must be apparent from the record itself.
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Join FLexlaw to unlock all legal intelligenceBishop pleaded no contest to attempted lewd or lascivious exhibition in the presence of a child and was placed on sex offender probation. Several mont…
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Robert G. Bishop appeals an order of the trial court denying his motion to strike his sexual predator designation. Bishop contends that he did not have a qualifying prior conviction to serve as a predicate offense. We affirm.
Several months after pleading no contest to attempted lewd or lascivious exhibition in the presence of a child and being placed on sex offender probation, the State filed a motion to designate Bishop as a sexual predator pursuant to section 775.21(4)(a)2., Florida Statutes (2008). In its motion, the State alleged that a prior New Jersey conviction, together with his Florida offense, qualified him as a sexual predator. Two days later, and without a hearing, the trial court granted the State’s motion and entered an order designating Bishop a sexual predator.1 Bishop did not appeal. Two months later, Bishop filed a motion to remove the designation. Bishop’s motion was denied and this appeal followed.
Bishop’s challenge to his sexual predator designation may be considered pursuant to Florida Rule of Criminal Procedure 3.800(a) if the defect is apparent from the face of the record. See Saintelien v. State, 990 So.2d 494 (Fla.2008) (holding that rule 3.800(a) motion may be used to challenge sexual predator designation, but only when it is apparent from face of the record that criteria for designation were not met). Here, the record does not allow that determination to be made. Bishop concedes that he was convicted of lewdness in New Jersey. But the record does not disclose whether that crime was the less serious disorderly persons offense defined by N.J. Stat. Ann. § 2C:14-4a. (2008), or the more serious offense defined by N.J. Stat. Ann § 2C:14-4b. (2008). Under N.J. Stat. 2C:1-4, a disorderly persons offense is not a crime, but rather a petit offense, unlike the fourth-degree crime found in section 2C:14-4b. of the New Jersey statute. The former would not qualify as a predicate offense, while the latter would.
*848Bishop should have been given a hearing before being designated a sexual predator. The lack of a hearing notwithstanding, Bishop should have appealed his sexual predator designation. Having failed to do so, and having concluded that the propriety of his sexual predator designation cannot be determined from the face of the record, Bishop’s remedy, if he has one, is to be found in a timely motion for postcon-viction relief.
AFFIRMED.
GRIFFIN and COHEN, JJ., concur.
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Tery Johnson v. State, 80 So. 3d 1137 (Fla. 1st DCA 2012)…laiv or similar laws in another jurisdiction, the court shall make a written finding that the offender is a sexual predator. (emphasis added). The trial court did not hold the hearing required by this statute. This was error. Cf. Bishop v. State, 42 So. 3d 846, 847 n. 1 (Fla. 5th DCA 2010) (“A defendant is entitled to a hearing before a sexual predator designation can be imposed because the court must make factual findings as to the existence of the qualifying prior conviction.”). [*1138] This error was n…
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State v. Burgess, 168 So. 3d 316 (Fla. 5th DCA 2015)…dator based upon his Indiana conviction. “A defendant is entitled to a hearing before a sexual predator designation can be imposed because the court must make factual findings as to the existence of the qualifying prior conviction.” Bishop v. State, 42 So. 3d 846, 847 n. 1 (Fla. 5th DCA 2010). The determination of whether Respondent is a sexual predator requires the trial judge to eon- [*319] duct a hearing, take evidence, and reach a decision. The outcome cannot be compelled by mandamus. See Lakeshore Townh…
Authorities Cited
- Renoit Saintelien v. State, 990 So. 2d 494 (Fla. 2008)
- Cheshire v. State, 969 So. 2d 458 (Fla. 1st DCA 2007)