RONALD LOWERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Lowery appealed the denial of his motion to correct an illegal sentence, challenging his sexual predator designation. The court reversed and remanded regarding the sexual predator designation, finding that because Lowery's crimes allegedly occurred both before and after the effective date of the Sexual Predator Act (October 1, 1993), and the record contained no evidence establishing the crimes occurred after that date, the designation was improper under the rule of lenity.
The court reversed the denial of Lowery's claim that his sexual predator designation was illegal. Because there was no evidence in the record establishing that Lowery's crimes occurred after October 1, 1993, and the rule of lenity prohibits applying the Sexual Predator Act to crimes whose timing is unclear, the sexual predator designation must be struck or the trial court must attach portions of the record conclusively demonstrating the crimes occurred after the Act's effective date.
[1] A sexual predator designation may be challenged via postconviction motions pursuant to rules 3.800(a) and 3.850.
[2] The Florida Sexual Predators Act applies only to offenses committed on or after its effective date of October 1, 1993.
Previewing 2 of 4 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“Because it is possible Mr. Dennis committed his offenses before the Florida Sexual Predators Act's effective date, the rule of lenity prevents the trial court from imposing the sexual predator designation upon him for these convictions.”
Establishes the controlling legal principle that when offense dates are ambiguous spanning before and after the Act's effective date, the rule of lenity prohibits imposing the sexual predator designation.
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Join FLexlaw to unlock all legal intelligenceIn September 2001, Lowery entered a negotiated plea and was convicted of attempted capital sexual battery and lewd and lascivious conduct, receiving a…
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The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of all but one of the appellant’s claims. For the reasons discussed below, we reverse and remand the denial of appellant’s claim that his sexual predator designation is illegal.
In September of 2001, pursuant to a negotiated plea, the appellant was convicted of attempted capital sexual battery and lewd and lascivious conduct and was sentenced to thirty years’ imprisonment to be followed by fifteen years on probation. The appellant was also designated a sexual predator. The crimes were alleged to have occurred between January 1, 1990, and September 28,1994.
The appellant asserts that his sexual predator designation is improper because he was convicted of offenses that occurred prior to October 1, 1993, the effective date of the Sexual Predator Act. See § 775.21(4)(a), Fla. Stat. (1994) (stating that sexual predator act applies for a “current offense committed on or after October 1, 1993”); Wade v. State, 728 So.2d 284 (Fla. 2d DCA 1999) (“Because Wade’s offenses were committed prior to October 1, 1993, we conclude that he did not meet the criteria for a sexual predator designation.”). The trial court noted that the information alleged the crimes took place between January 1, 1990, and September 28, 1994, and thus, because some of the alleged actions occurred after October 1, 1993, his sexual predator designation is proper.
In Dennis v. State, 32 So.3d 79 (Fla. 2d DCA 2009), a defendant was convicted of three sexual offenses which, according to the information, occurred over a 13-month period which included dates both before and after the Sexual Predator Act’s effective date. The defendant filed a motion for postconviction relief pursuant to rule 3.850 alleging that his sexual predator designation was improper. The Second District agreed, noting that “[t]here is no evidence in the record ... to establish the dates of [the defendant’s] offenses with any greater specificity than the period charged in the information.” The Court also noted that the victim’s testimony did not provide any precise dates. The Dennis Court held, “[b]ecause it is possible Mr. Dennis committed his offenses before the Florida Sexual Predators Act’s effective date, the rule of lenity prevents the trial court from imposing the sexual predator designation upon him for these convictions.” Here, as in Dennis, there is no evidence in the record establishing that the crimes to *165which the appellant pled guilty occurred after the effective date of the Act.
Accordingly, we REVERSE and REMAND for the trial court to attach portions of the record conclusively demonstrating that the appellant’s crimes were committed after October 1, 1993, or to strike the appellant’s sexual predator designation. We AFFIRM the denial of the appellant’s other claims.
VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.
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Green v. State, 111 So. 3d 248 (Fla. 1st DCA 2013)…is subsequent divorce, and that he was not living in the home after the date that the Sexual Predators Act took effect. Thus, he claims, he is not subject to the Sexual Predators Act. He seeks to have this designation rescinded. See Lowery v. State, 98 So. 3d 163 (Fla. 1st DCA 2012). In Lowery, the defendant complained that his Sexual Predator designation was improper because he was convicted of offenses that occurred prior to the effective date of the Sexual Predators Act. The information actually charged…
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Weckesser v. State, 200 So. 3d 104 (Fla. 5th DCA 2015)…re 3.800(a) motion to correct illegal sentence, except as to one claim. As the State concedes, Appellant’s designation as a sexual predator must be vacated if the underlying offense was committed prior to October 1, 1993. See, e.g., Lowery v. State, 98 So. 3d 163, 164-65 (Fla. 1st DCA 2012) (holding that sexual predator designation is improper where offense for which Appellant was convicted occurred prior to October 1, 1993, which is the effective date of Florida’s Sexual Predator Act; error to summarily den…
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Bicking v. State, 200 So. 3d 799 (Fla. 1st DCA 2016)…esignation. See Ch. 93-277, § 1, Laws of Fla. (1993) (creating The Florida Sexual Predators Act); § 775.21(4)(a), Fla. Stat. (1993) (stating that the sexual predator criteria apply to offenses committed on or after October 1, 1993); Lowery v. State, 98 So. 3d 163, 164-65 (Fla. 1st DCA 2012) (directing the trial court to strike the sexual predator designation unless it attaches portions of the record conclusively demonstrating that the appellant’s crimes were committed after October 1, 1993). Therefore, we A…
Authorities Cited
- Wade v. State, 728 So. 2d 284 (Fla. 2d DCA 1999)
- Harrell v. State, 728 So. 2d 284 (Fla. 3d DCA 1999)
- Dennis v. State, 32 So. 3d 79 (Fla. 2d DCA 2009)