State v. Wiita
| Decision Date | 30 June 1999 |
| Docket Number | 98-2248,4 |
| Parties | STATE of Florida, Appellant, v. Bruce Brian WIITA, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Harold J. Cohen, Judge; L.T. Case No. 91-1945CFA02.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellant.
James K. Green of James K. Green, P.A., West Palm Beach, and Richard G. Lubin of Lubin and Gano, P.A., West Palm Beach, for appellee.
Appellant, the State of Florida ("the state"), appeals from an Order Granting Defendant's Sworn Motion to Vacate Sentence. Because we find that the trial court did not abuse its discretion by entering the Order, we affirm.
On June 13, 1991, the state filed an information that charged Bruce Wiita ("Wiita") with three counts of lewd assault and three counts of sexual activity with a child. On June 24, 1991, Wiita pled guilty to one count of lewd assault and one count of sexual activity with a child pursuant to a negotiated plea agreement. The plea agreement provided that the state would nolle prosse all of the other counts, that adjudication would be withheld, and that Wiita would be sentenced to ten years probation. The plea agreement further provided that Wiita: would pay for the victim's medical and psychological counseling costs up to $5000; would receive a psychological evaluation and treatment as recommended; would have no contact with the victim; would have no unsupervised contact with children under the age of eighteen years, except his own, until his psychologist approved; would complete 500 hours community service within the first five years of his probation; and that probation could terminate after seven years if all conditions had been satisfied and his psychologist approved.
On October 1, 1997, section 943.0435 of the Florida Statutes was enacted. Section 943.0435, which is retroactive in nature, requires persons convicted of sexual offenses to report to the Florida Department of Law Enforcement (FDLE). Wiita complied with the reporting requirements of section 943.0435, and FDLE subsequently posted his name and photograph on the Internet as a sexual offender. On June 4, 1998, Wiita filed a motion to vacate his sentence and/or preclude his compliance with section 943.0435, Florida Statutes. Wiita claimed that because section 943.0435 was not in effect at the time he entered his plea agreement, the reporting and publication requirements of the statute were neither contemplated nor made a part of his plea agreement. Based upon these facts, Wiita argued that good cause existed to vacate his plea because it was not entered knowingly or voluntarily.
At the hearing on the motion, Wiita testified that the only reason he entered a plea to the charges was to shelter his wife, who was pregnant at the time and had previously endured four miscarriages, from the publicity and stress associated with a trial. Wiita also stated he never would have entered into the plea agreement if he knew his name and photograph would be published on the Internet, that his children's school would be notified that he was a sexual offender, or that his name would be published as a sexual offender in a local newspaper. The trial court found that Wiita did not enter his guilty plea with an understanding of the full consequences of the plea. Thus, the trial court held Wiita's plea was not freely and voluntarily entered. The Order Granting Defendant's Sworn Motion to Vacate Sentence was entered, which also stated that Wiita was no longer subject to the provisions of section 943.0435. The state appeals the trial court's order.
Although Wiita's motion to withdraw his plea stated that applying section 943.0435 to him was an ex post facto violation, at the hearing his counsel stated "[y]es, so--It applies retroactively, it's ex-post [sic] facto and all of that, but I'm not making the Constitutional argument." This statement clearly demonstrates that Wiita expressly waived any ex post facto argument and failed to preserve the issue for appellate review.
Furthermore, the state failed to seek a definitive ruling from the trial court on the issue of the ex post facto application of the statute. Therefore, this court will not address whether applying section 943.0435 to Wiita constitutes an ex post facto violation because the argument was not properly raised before the trial court. See Trushin v. State, 425 So.2d 1126 (Fla.1982); Collie v. State, 710 So.2d 1000 (Fla. 2d DCA), rev. denied, 722 So.2d 192 (Fla.), cert. denied, --- U.S. ----, 119 S.Ct. 624, 142 L.Ed.2d 563 (1998); Springfield v. State, 443 So.2d 484 (Fla. 2d DCA 1984).
A trial court's decision regarding the withdrawal of a plea will generally not be disturbed on appeal absent a showing of...
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