Collie v. State
| Decision Date | 01 May 1998 |
| Docket Number | No. 96-03945,96-03945 |
| Citation | 710 So.2d 1000 |
| Parties | 23 Fla. L. Weekly D1102 Troy Lee COLLIE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Frank D.L. Winstead, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.
Troy Lee Collie appeals the trial court order designating him to be a sexual predator. We affirm.
In July 1994, the State charged Collie with sexual battery and two other felonies committed on June 27, 1994. In September 1994, Collie entered an open plea of nolo contendere to all three counts. The court accepted Collie's plea and placed him on community control for two years followed by five years of probation on Count I. In March 1996, Collie admitted that he violated his community control in exchange for a sentence of five years' prison, with credit for time served, which the court accepted and imposed.
Approximately twenty weeks after Collie had been sentenced, the State filed a notice of hearing to declare him to be a sexual predator. The trial court held a hearing, and found that Collie met the criteria for being declared a sexual predator and entered an order based upon its determination, stating that "[t]he Defendant meets the definition of sexual predator contained in former Florida Statute § 775.23(2) and/or as defined in Florida Statute § 775.21 as amended July 1, 1996."
Collie raises five issues in this appeal: (1) that the court lacked jurisdiction to declare him to be a sexual predator; (2) that the court failed to comply with the express requirements of section 775.23(3), Florida Statutes (1993); (3) that the court violated his plea bargain and double jeopardy rights when it declared him a sexual predator; (4) that the court violated his due process rights when it failed to provide him notice and an opportunity to be heard before declaring him a sexual predator; and (5) that the court violated his constitutional right to counsel when the sexual predator hearing was held without representation of counsel.
On October 1, 1993, the legislature enacted The Florida Sexual Predator's Act ("Act") which was codified at section 775.21-.23, Florida Statutes (1993). The 1993 Act consists of three parts: (1) legislative findings, 1 (2) registration requirements, procedures, and penalties, 2 and (3) the sexual predator definition. 3 Section 775.23, Florida Statutes (1993), defines a "sexual predator" as:
[A]n offender who is convicted on the current offense of or is found to have committed, regardless of adjudication, or who pleads nolo contendere or guilty to:
(a) Any capital, life, or first degree felony violation of chapter 794 or s. 847.0145, or of a similar law of another jurisdiction; or
(b) Any second degree or greater felony violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, or of a similar law of another jurisdiction, and who has previously been convicted of or found to have committed, regardless of adjudication, or has pled nolo contendere or guilty to, any violation of s. 794.011(2), (3), (4), or (5), s. 794.023, s. 794.041(2)(a) or (b), s. 800.04, s. 827.071, s. 847.0133, or s. 847.0145, or of a similar law of another jurisdiction.
§ 775.23(2), Fla. Stat. (1993) (footnote omitted). However, the current offense must have been "committed on or after October 1, 1993." § 775.23(3), Fla. Stat. (1993).
Section 775.23, Florida Statutes (1993), also states that the trial court "shall make a written finding that an offender is a sexual predator" upon sentencing, if the offender meets the sexual predator definition. See § 775.23(3), Fla. Stat. (1993).
Those designated as sexual predators under the 1993 Act are required to comply with the registration requirements of section 775.22, Florida Statutes (1993). The legislative purpose of the registration requirement is "to enhance the public safety by requiring the registration of sexual predators, providing for the monitoring of their activities and the tracking of their whereabouts, and facilitating law enforcement and prosecution." § 775.22(1), Fla. Stat. (1993). Registration requires the sexual predator to provide his or her full description, a photograph, and residence and employment information to the Florida Department of Law Enforcement (FDLE) within forty-eight hours of entering a county of permanent or temporary residence, after being released from a correctional or treatment facility. If the sexual predator changes his or her permanent or temporary address after the initial registration, he or she must provide written notification to the department of his or her new temporary or permanent address within forty-eight hours after arrival at the new place. See § 775.22(3)(b)1, Fla. Stat. (1993).
Any sexual predator who fails to comply with the registration requirement commits a felony of the third degree; and if the offender is on supervised release, the failure to comply with the registration requirement will be considered a violation of the conditions of supervised release. See § 775.22(3)(f)1-2, Fla. Stat. (1993). Certain sexual predators are exempt from the registration requirements. 4
In 1994, the New Jersey legislature passed "Megan's Law" in response to the sexual assault and brutal murder of seven-year-old Megan Kanka by a twiceconvicted sex offender who lived nearby. Megan's Law was enacted for the specific purpose of providing parents and others in the community with notice and fair warning of the presence of convicted sex offenders. See Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995) (reciting history of New Jersey's Megan's Law).
Florida's version of Megan's Law was incorporated into The Florida Sexual Predator's Act in 1995 and codified at section 775.225, Florida Statutes (1995). The incorporation of section 775.225 required the legislature to revise its legislative purpose and findings. The 1995 Act asserts that the State's strategy to achieve a significant reduction in the commission of violent and repeat sex offenses includes "[p]roviding for notification of the community concerning the presence of certain sexual predators." § 775.21(2)(b)5, Fla. Stat. (1995). The 1995 legislative findings further state that "[t]he state has a compelling interest in protecting the public from serious sex offenses, and there is sufficient justification for requiring that the public be notified of the presence of certain sexual predators." § 775.21(2)(d), Fla. Stat. (1995). The legislative intent of the 1995 Act was amended to require that "the sheriff or chief of police ... notify the public if, after a hearing, the circuit court finds that a sexual predator poses a threat to the public." § 775.21(3), Fla. Stat. (1995).
The sexual predator definition under the 1995 Act remained virtually unchanged from the 1993 Act. 5 Compare § 775.23(2), Fla. Stat. (1995), with § 775.23(2), Fla. Stat. (1993). However, the registration procedure was amended to require the FDLE to do the following:
[N]otify a sexual predator who registers with the department for an offense committed on or after October 1, 1995, of the requirement for a hearing before the circuit court for the county where the sexual predator permanently or temporarily resides ... to determine whether the sexual predator poses a threat to the public. 6
§ 775.22(3)(d), Fla. Stat. (1995) ().
The incorporation of section 775.225 was the major amendment in the 1995 Act. This section provides specific procedures to accomplish the legislative purpose of notifying the public of sexual predators that are deemed to be a threat. After the registration of a sexual predator, section 775.225 requires the state attorney to file a petition with the circuit court for a hearing to determine, by a preponderance of the evidence, whether the sexual predator poses a threat to the public. See § 775.225(1), Fla. Stat. (1995). "At the hearing, the sexual predator has the right to be present, to present testimony, to call and cross-examine witnesses, and to be represented by counsel." Id.
In making its determination of whether the sexual predator poses a threat to the public, the trial court must consider certain enumerated factors, including: the relationship between the sexual predator and the victim; whether the offense involved the use of a weapon or violence; the number of prior offenses; the risk of recidivism; and the sexual predator's response to treatment. See § 775.225(1)(a)-(f), Fla. Stat. (1995). If the trial court determines that the sexual predator "poses a threat to the public and that notice to the community where the sexual predator temporarily or permanently resides is necessary to protect public safety," the court is required to notify the sheriff or the chief of police of that community. § 775.225(2)(a), Fla. Stat. (1995). The sheriff or chief of police then is required to notify the public of the sexual predator's presence by publishing a notice in a newspaper of general circulation once a week for two consecutive weeks. See § 775.225(2)(b), Fla. Stat. (1995). The notice must include:
1. The name of the sexual predator;
2. A description of the sexual predator, including a photograph;
3. The name of the county or municipality where the sexual predator temporarily or permanently resides;
4. The offenses and the circumstances surrounding the conviction of the sexual predator ...; and
5. The age of the victim....
§ 775.225(2)(b)1-5, Fla. Stat. (1995). Presumably, the public notification provisions of section 775.225 do not apply to sexual predators whose current offenses were committed before October 1, 1995. This limitation, while not specifically stated, can be inferred from the language of section 775.22(3)(d), Florida Statutes (1995).
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