Cabrera v. State, 5D03-2367.

Decision Date08 October 2004
Docket NumberNo. 5D03-2367.,5D03-2367.
PartiesHumberto CABRERA, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Ricardo R. Pesquera, Orlando, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Humberto Cabrera appeals the judgment and sentences imposed pursuant to a jury verdict finding him guilty of sexual battery on a mentally defective person, two counts of battery and two counts of lewd and lascivious behavior. Of the several issues Cabrera raises, we write to address two: (1) whether his convictions for the two counts of lewd and lascivious behavior violate the Double Jeopardy Clauses of the Florida and federal constitutions, and (2) whether his designation as a sexual predator should be reversed. We answer the first question in the affirmative and reverse one conviction of lewd and lascivious behavior; as to the second, Cabrera's failure to preserve the issue precludes appellate review. We will briefly explain our conclusions. Regarding the other issues raised by Cabrera, we affirm without discussion.1

While Cabrera and his mentally challenged victim were together in a swimming pool, Cabrera committed the two alleged acts of lewd and lascivious behavior. Specifically, count four of the information alleged that Cabrera touched the breasts of the victim and count five alleged that he touched the buttocks of the victim. The State charged that each act was committed in violation of section 798.02, Florida Statutes (2002), which provides:

If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The evidence reveals that Cabrera and the victim were in the pool a relatively short period of time—approximately thirty minutes. The victim's mother, who was present at the pool, testified that the inappropriate touching occurred within a span of minutes. Cabrera alleges that he was improperly convicted of both counts because the touching occurred during one criminal episode and therefore, his multiple convictions violate double jeopardy principles.

In Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), we explained the analysis that should be employed to determine whether two convictions arise from a single criminal episode:

"The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Gordon v. State, 780 So.2d 17, 19 (Fla. 2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)); see also Cruller v. State, 808 So.2d 201, 203 (Fla.2002)

. If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), now codified in section 775.021(4), Florida Statutes (2002). Cruller; Gordon; M.P. The court in Cruller emphasized that if there is a clear expression of legislative intent to require two separate punishments analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining the language, structure, and legislative history of section 800.04. Cruller, 808 So.2d at 203.

Id. at 1170.

Our examination of the language, structure and legislative history of section 798.02 leads us to conclude that there is no clear legislative intent to authorize two separate punishments for acts of lewd and lascivious behavior alleged to be in violation of the statute. Moreover, our application of the Blockburger2 analysis codified in section 775.021(4) does not lead us to conclude that each act in violation of the statute is a separate offense. We, therefore, advert to the proper legal analysis to determine whether the acts for which Cabrera was convicted occurred during a single criminal episode. Hunsicker. Because there was not a sufficient temporal break between the two acts on which counts four and five are based to have allowed Cabrera time to pause, reflect and form a new criminal intent for each offense, both acts occurred in a single criminal episode. Id. Hence, both convictions violate double jeopardy principles and, accordingly, we affirm Cabrera's conviction on one count and reverse his conviction for the other and remand for resentencing.

Regarding the alleged erroneous sexual predator designation, this court held in Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), that an erroneous designation as a sexual predator under section 775.21, Florida Statutes (2002), is a sentencing error that must be properly preserved for review. If it is not, the defendant may not raise it for the first time on appeal. When Cabrera was sentenced, he did not object, and he has not filed an appropriate motion pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. Therefore, he has not properly preserved this issue for review by this court and, because we are bound by the decision in Nicholson, we must affirm without prejudice to Cabrera to raise it in a proper motion pursuant to rule 3.800(a) or rule 3.850. We certify conflict with Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000), review denied, 789 So.2d 344 (Fla.2001), and Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998).

AFFIRMED in part, REVERSED in part, and REMANDED.

PLEUS and PALMER, JJ., concur.

SAWAYA, C.J., concurs specially with opinion.

SAWAYA, C.J. concurring specially.

Although I concur with the majority opinion, I write to explain my reluctant concurrence regarding the issue raised by Cabrera concerning his designation as a sexual predator. Cabrera contends that his sexual predator designation should be reversed, arguing that he was denied due process because he was not afforded a hearing and the State failed to establish the necessary requirements to qualify him for the designation. The State contends that Cabrera raises a sentencing error that he failed to preserve for review because he did not object at the appropriate time and did not file a motion pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. In Brannon v. State, 850 So.2d 452 (Fla.2003), the court explains that there is no longer fundamental sentencing error: If the alleged error was not properly preserved for review, the error may not be raised on direct appeal and the defendant will be left to pursue his or her remedy via a proper postconviction relief motion. On the other hand, if the error is not a sentencing error, the fundamental error rule may apply to allow the unpreserved error to be raised for the first time on appeal. Therefore, the central issue is whether the designation of a defendant as a sexual predator pursuant to section 775.21, Florida Statutes (2002), is a sentencing error.

This issue has been addressed by this court and the Second District Court, and divergent views have emerged. In Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), this court held that an erroneous designation under section 775.21 is a "sentencing error," which it broadly defined as "any error that occurs as part of the sentencing process." Id. at 1219. Adopting a simplistic approach regarding sexual predator designations, this court held that an erroneous designation falls within the definition of "sentencing error" because section 775.21(5)(a)1.3 requires that the designation be made at the time of sentencing. See also Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003)

. In Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998), the Second District Court took a completely different approach and held that designation proceedings under the statute are civil actions. See also Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000). I very respectfully submit that the views adopted by both courts are incompatible and inconsistent with the provisions of section 775.21, Florida Statutes. Thus, I write to assert a third approach. I believe that an erroneous designation as a sexual predator is an error committed in a criminal proceeding that relates to the defendant's conviction for the qualifying offense. Such an error may, therefore, be raised for the first time on appeal provided it qualifies as a fundamental error. I conclude that Cabrera, having argued that his due process rights were violated, has alleged a fundamental error that may be raised for the first time on appeal.4 Accordingly, we should decide this issue on the merits rather than summarily affirm pursuant to the preservation of error rule applicable to sentencing errors.

I reach this conclusion based on the provisions of section 775.21 and the nature of a sexual predator designation. Section 775.21(3)(d), Florida Statutes (2002), specifically provides that "[t]he 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." In State v. Robinson, 873 So.2d 1205 (Fla.2004), the court recently held that an order designating an individual as a sexual predator is directly appealable under Florida Rule of Appellate Procedure 9.140, which provides that "[a] defendant may appeal ... orders entered after final judgment or finding of guilt...." Fla. R.App. P. 9.140(b)(1)(D). In Robinson, the court explained:

The district court had jurisdiction to review the order under Florida Rule of Appellate Procedure 9.140(b)(1)(C), which grants appellate jurisdiction over criminal court orders "entered after final judgment or finding of guilt." See also art. V, § 4(b)(1), Fla. Const. (granting
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