King v. State, No. 2D04-1513.

CourtUnited States State Supreme Court of Florida
Writing for the CourtAltenbernd
Citation911 So.2d 229
Docket NumberNo. 2D04-1513.
Decision Date28 September 2005
PartiesLonnie Gene KING, Appellant, v. STATE of Florida, Appellee.
911 So.2d 229
Lonnie Gene KING, Appellant,
STATE of Florida, Appellee.
No. 2D04-1513.
District Court of Appeal of Florida, Second District.
September 28, 2005.

Page 230

Lonnie Gene King, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.



Lonnie Gene King appeals the summary denial of his postconviction motion seeking to challenge his designation as a sexual predator. If we followed our own precedent, we would affirm this order because we have not treated a sexual predator designation as a portion of a criminal sentence that can be challenged under the standard postconviction rules. After seven years of experience, we recognize that our efforts to treat a sexual predator designation as a separate "civil" order within a criminal proceeding have been unsuccessful and have resulted in a procedural morass. We conclude that the approach taken by the Fifth District in Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), and Cabrera v. State, 884 So.2d 482 (Fla. 5th DCA 2004), is a better solution. Accordingly, we recede from our prior case law and hold that a sexual predator designation is a matter that can be challenged by an appropriate postconviction motion. The designation may also be reviewed during a direct appeal from a criminal judgment or sentence. Because the State concedes that Mr. King was designated as a sexual predator under circumstances where the law does not permit such a designation, we reverse the order of the circuit court and remand with directions for the circuit court to grant the motion as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

Page 231

Mr. King was charged in November 2000 with lewd molestation pursuant to section 800.04(5)(a), Florida Statutes (2000). This offense was a first-degree felony and upon conviction would have required the trial court to designate Mr. King as a sexual predator. See §§ 775.21(4)(a)(1)(a), 775.21(5), Fla. Stat. (2000). However, on November 13, 2001, Mr. King pleaded no contest to a reduced charge of lewd and lascivious battery in violation of section 800.04(4). A conviction for this second-degree felony offense results in the classification of Mr. King as a sexual offender. See § 943.0435(1)(a), Fla. Stat. (2000) (defining "sexual offender"). It did not, however, make him eligible for treatment as a sexual predator unless he had a prior conviction, which he does not have. See § 775.21(4).

At the plea hearing, the trial court discussed with Mr. King the fact that he would be treated as a sexual offender if the court accepted his plea, and Mr. King understood this consequence. A few days later, without a hearing, the trial court entered an amended sentence, designating Mr. King as a sexual predator rather than a sexual offender.

Mr. King filed a direct appeal in case number 2D02-424. His attorney filed an Anders1 brief in which he pointed out that Mr. King's designation as a sexual predator was improper. Mr. King's lawyer concluded that the issue could not be raised on direct appeal as fundamental error in light of this court's case law indicating that the designation order was "civil" in nature and not a part of the criminal sentence. We affirmed the judgment and sentence in an unwritten opinion. See King v. State, 865 So.2d 496 (Fla. 2d DCA 2003).

In January 2004, Mr. King filed a motion for relief from the amended sentence. He explained the nature of this error and asked the court to correct his designation under rule 3.800, "civil relief," or "any other petition for a writ," citing our opinion in Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000). The trial court denied this motion with an order suggesting that the trial court believed that Mr. King's sexual predator designation was legally correct but also recognizing that the issue was not reviewable by any standard postconviction motion. Mr. King challenges that ruling in this appeal.

This case highlights the problems that have developed with this court's prior precedents concerning a postconviction challenge to a sexual predator designation. In Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998), this court correctly concluded that a sexual predator designation was not a sentence for purposes of a constitutional analysis of double jeopardy or ex post facto and that the designation could be entered beyond the time for modifying a sentence under Florida Rule of Criminal Procedure 3.800(c). A few months later, we relied on Collie to further conclude that the designation was not subject to challenge under rule 3.800(a) or Florida Rule of Criminal Procedure 3.850. See Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998). In Angell, this court wrote:

While Florida Rules of Criminal Procedure 3.800 and 3.850 are unavailable to Angell to attempt to rectify this error, this affirmance is without prejudice for him to pursue any available civil remedies.

Id. at 1132.

Two years after Angell, we issued Coblentz, 775 So.2d 359. In Coblentz, the defendant sought to challenge a sexual predator designation by rule 3.800(a) after his appellate attorney had not raised the

Page 232

issue on direct appeal. The record in Mr. Coblentz's appeal strongly indicated that he had been designated a sexual predator when the law did not permit this designation under the circumstances in his case. We stated:

Candidly, we are uncertain what appellate remedy was available to Mr. Coblentz [at the time of the direct appeal].

. . .

Mr. Coblentz claims that he does not qualify as a sexual predator. His convictions are second-degree felonies. Under section...

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25 cases
  • Saintelien v. State, No. SC06-1888.
    • United States
    • United States State Supreme Court of Florida
    • August 28, 2008
    ...challenges to be raised in separate civil proceedings); Boyer v. State, 946 So.2d 75 (Fla. 1st DCA 2006) (same); contra King v. State, 911 So.2d 229 (Fla. 2d DCA 2005) (permitting such challenges to be raised in criminal postconviction proceedings); Kidd v. State, 855 So.2d 1165 (Fla. 5th D......
  • Vasquez v. State, Case No. 2D20-1139
    • United States
    • Court of Appeal of Florida (US)
    • October 7, 2020
    ...v. State, 61 So. 3d 1127 (Fla. 2d DCA 2011) (table decision); State v. Vasquez, 918 So. 2d 1016 (Fla. 2d DCA 2006) ; King v. State, 911 So. 2d 229 (Fla. 2d DCA 2005) (en banc); Sheppard v. State, 907 So. 2d 1259 (Fla. 2d DCA 2005) ; Haynes v. State, 106 So. 3d 481 (Fla. 5th DCA 2013) ; Tedd......
  • Boyer v. State, No. 1D06-1625.
    • United States
    • Court of Appeal of Florida (US)
    • December 27, 2006
    ...that an appellant can challenge his or her erroneous designation as a sexual predator only in a separate civil action. King v. State, 911 So.2d 229, 230 (Fla. 2d DCA 2005)(en banc). In King, the Second District certified conflict with the Fourth District and aligned itself with the Fifth Di......
  • Breitberg v. State, No. 4D06-3681.
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 2009
    ...v. State, 937 So.2d 234 (Fla. 4th DCA 2006), affd on other grounds, 990 So.2d 494 (Fla.2008). We certified conflict with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), on the issue. In Saintelien, the supreme court held that a rule 3.800(a) motion may be used to challenge a sexual predato......
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