Debose v. State

1

Kadeem Cordale Debose, Appellant, v. State of Florida, Appellee.

No. 1D2022-0995

Florida Court of Appeals, First District

December 11, 2024

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Alachua County. Mitchell D Bishop, Judge.

Jessica J. Yeary, Public Defender, and Kathryn Lane Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert "Charlie" Lee Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Kadeem Cordale Debose was convicted of unlawful sexual activity with a minor under section 794.05, Florida Statutes, and the unlawful use of a two-way communications device in furtherance of a crime under section 934.215, Florida Statutes. We affirm Debose's judgment and sentence on all issues. We write to briefly address Debose's claim about venue. We also write to explain why the court properly designated Debose a sexual predator, despite the State's concession of error. In doing so, we certify conflict with the Fourth District Court of Appeal regarding its decision in Montgomery v. State, 183 So.3d 1042 (Fla. 4th DCA 2015).

I

Debose argues that his motion for judgment of acquittal for the charge of unlawful use of a two-way communications device should have been granted because the State failed to present evidence supporting venue. More specifically, Debose argues that because the State did not present evidence that he sent text messages from Alachua County (where the trial occurred) venue was not proven, and therefore his judgment of acquittal motion should have been granted.

The concurring opinion suggests that we should reject Debose's argument because the question of whether the defendant has been charged and tried in the correct venue should never be answered by the jury. We are, however constrained to reject this suggestion because longstanding Florida Supreme Court cases have indicated that venue is an appropriate question for the jury and that a defendant may move for acquittal on the ground that the State failed to prove proper venue. See, e.g., Hopkins v. State, 42 So. 52 (1906); McKinnie v. State, 32 So. 786 (Fla. 1902); Warrace v. State, 8 So. 748 (Fla. 1891). But we agree that a question of great public importance should be certified, so we join in certifying the questions set out by our colleague in his concurring opinion.

That said, we find that this issue is resolved by section 910.15(1), Florida Statutes, which reads in pertinent part as follows:

A person charged with committing a crime facilitated by communication through use of . . . telephone . . . or another means of electronic data communication may be tried in the county in which the dissemination originated, in which the dissemination was made, or in which any act necessary to consummate the offense occurred.

Regardless of Debose's location when he texted the victim, the evidence showed that the victim was in Alachua County when she received the communications from Debose. Because the "dissemination" of the communication "was made" in Alachua County, venue was proper there under section 910.15(1), and the court did not err in denying the motion for judgment of acquittal.^[1]

II

At sentencing, the State offered Debose's prior conviction in Colorado to support designation as a sexual predator. Section 775.21(4)(a) requires an offender to be designated a sexual predator upon conviction of certain crimes. Sub-subparagraph (4)(a)1.b. requires designation if an offender is convicted of a violation of section 794.05-like Debose-and has a previous violation of one of several Florida laws, "or a violation of a similar law of another jurisdiction[.]" The trial court found that the previous Colorado conviction was similar to one of the enumerated Florida offenses, and thus supported sexual predator designation.

Debose claims that the Colorado statute applies to more conduct than the Florida statute.^[2] Perhaps so. But even if true, does that fact necessarily mean that a violation of the Colorado statute is not "similar" to the corresponding Florida law such that it cannot serve as a prior violation for purposes of the Sexual Predators Act? Debose claims that it does, and that his conclusion is supported by the decision in Montgomery. The State agrees, but we do not.

A

When it enacted section 775.21, "The Florida Sexual Predators Act," in 1993, the Legislature found that "[t]he high level of threat that a violent or repeat sex offender present[ed] to the public safety . . . provide[d] the state with sufficient justification to design and implement innovative mechanisms as part of a strategy to achieve a significant reduction in the commission of violent and repeat sex offenses[.]" Ch. 93-277, § 1, Laws of Fla.; see also § 775.21(3)(b), Fla. Stat. (same). The Act sets forth criteria qualifying an offender for sexual predator status, which has gone almost unaltered since its enactment. Compare ch. 93-277, Laws of Fla. with § 775.21(4), Fla. Stat. (2022) (changing only the list of enumerated crimes that trigger the designation). Here are those criteria:

SEXUAL PREDATOR CRITERIA.-

(a) For a current offense committed on or after October 1 1993, upon conviction, an offender shall be designated as a "sexual predator" under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:

1. The felony is:

....

b. Any felony violation, or any attempt thereof, of s 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor; s. 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s. 827.071; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; s. 895.03, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive; s. 916.1075(2); or s. 985.701(1); or a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor; s. 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; s. 895.03, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive; s. 916.1075(2); or s. 985.701(1); or a violation of a similar law of another jurisdiction[.]

§ 775.21(4)(a), Fla. Stat. A defendant qualifies for sexual predator status under sub-subparagraph (a)1.b. if he is convicted of an enumerated offense and has a previous violation of an enumerated offense. The previous violation may also involve "a similar law of another jurisdiction." Id. The meaning of that phrase is discussed below.

As stated above, the previous offense here was Debose's conviction under section 18-3-405.3(1), Colorado Revised Statutes, which reads as follows:

Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.

The State contended that the Colorado statute was "similar" to section 794.011(8)(b) Florida Statutes, which reads as follows:

(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

....

(b) Engages in any act with that person while the person is 12 years of age or older but younger than 18 years of age which constitutes sexual battery commits a felony of the first degree[.]

Debose argues that "sexual contact" under the Colorado law is broader than "act . . . which constitutes sexual battery" under the Florida law. Debose likewise claims that "position of trust" is broader than "position of familial or custodial authority." Since a possible scenario exists that would violate the Colorado statute but not the Florida statute, Debose contends that the laws are not "similar" for purposes of the Sexual Predators Act. We examine the Sexual Predators Act to determine the proper scope of the term "similar."

The Sexual Predators Act itself sets forth the purpose and intent of the statute, stated in full as follows:

LEGISLATIVE FINDINGS AND PURPOSE; LEGISLATIVE INTENT.-

(a) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.

(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by

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