State v. Crose

378 So.3d 1217

STATE of Florida, Appellant,

v.Andrew Scott CROSE, Appellee.

No. 2D21-2784

District Court of Appeal of Florida, Second District.

January 26, 2024

Appeal from the Circuit Court for Sarasota County; Donna Padar, Judge.

Ashley Moody; Attorney General, Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa,’ for Appellant.

Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellee.

EN BANC

LUCAS, Judge.

The State of Florida appeals an order dismissing a charge against Andrew Scott Crose for failure of a sex offender to report an electronic mail address or instant message name, a violation of sections 943.0435(4)(e) and (9), Florida Statutes (2019). The issue before the circuit court was whether, at the time of his alleged offense, Mr. Crose had completed the underlying "sanction" of his original offense such that he was required to register as a sex offender. If he had completed the sanction, he could be prosecuted for this offense; if he hadn’t, he couldn’t.

Whether a sex offender has completed his prior criminal sanction would seem to be a relatively simple inquiry. But a panel decision interpreting section 943.0435(1)’s definition of "the sanction," followed by a legislative amendment in response to that decision, followed by a subsequent panel decision responding to that amendment, complicates the matter. We proceed en banc today for two purposes: to resolve our conflicting panel decisions and, more broadly, to address the facet of common law that precipitated that conflict.

I.

Because of the nature of the issue we must address and how the timing of legal developments impacted the proceedings below, our recitation of the facts and our legal analysis are somewhat intertwined. In this section, we recount Mr. Grose’s criminal history, the charge the State now alleges against him, and how the law concerning that criminal charge has changed during the course of the circuit court case and this appeal.

A.

In 2016, Mr. Crose was convicted for the use of a computer to seduce, solicit, or entice a child to commit a sex act in violation of section 847.0135(3)(a), Florida Statutes (2015). He was sentenced to four years in prison, followed by one year of sex offender probation, and designated as a "sex offender" under section 943.0435(1)(a)1. In 2019, after Mr. Crose had been released from prison but while he was still serving probation, he was again arrested for use of a computer to solicit a child to commit a sex act and for traveling to solicit a child to commit a sex act. The State alleges that Mr. Crose used an instant message or social media account on the "MeetMe" application to commit the offense in July of that year.

In the case at bar, the State charged Mr. Crose with failure of a sex offender to report an electronic mail address or instant message name under sections 943.0435(4)(e) and (9), a third-degree felony.¹ Mr. Crose filed, pro se, a motion to dismiss the charge, arguing that since his sanction was not completed (because he hadn’t finished probation) he wasn’t (yet) required to register his e-mail or instant message names as a sex offender.

In order to better understand what transpired in the circuit court proceedings, we must pause here and, unpack what his argument entailed. Under section 943.0435(4)(e), a designated "sex offender" is required to undertake a variety of registration requirements, including registering e-mail and instant messaging accounts. At the time of Mr. Grose’s offense, the pertinent parts of section 943.0435(1)(h) defined who qualifies as a "sex offender" (and, hence, who must register) as follows:

(h) 1. "Sexual offender" means a person who meets the criteria in sub-subparagraph a., sub-subparagraph b., sub-sub- paragraph c., or sub-subparagraph d., as follows:

a. (I) Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: 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); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; … or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-sub-subparagraph; and (II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility ….

(Emphasis added.)

In State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), we construed this statutory language to affirm a trial court’s dismissal of a failure to register charge in a situation, almost identical to Mr. Grose’s. The defendant in James had completed his incarceration, but he hadn’t paid his $10,000 fine, which was part of the sanction the court had imposed. James, 298 So. 3d at 91. Citing fundamental principles of statutory construction, we concluded that Mr. James’ entire "sanction" for his conviction under section 800.04 consists of fifteen years’ prison and a $10,000 fine…. Accordingly, his sanction, as a whole, has not been released, and he does not qualify as a "sexual offender" for purposes of reporting and registration under section 943.0435.

Id. at 92. Mr. Grose’s motion to dismiss argued that James’ interpretation and application of the statute was dispositive and required dismissal of this criminal charge.

B.

If James had remained the last word on the subject, the circuit court’s ruling (and the assigned panel’s review of it) would have been relatively uncomplicated. But within a relatively short span of time, two developments transpired.

1.

The first was the legislature’s amendment to subsection (h)1 of section 943.0435(1), which was enacted during the session immediately following James’ issuance, well after Mr. Grose’s alleged offense but before the circuit court had heard Mr. Grose’s motion to dismiss.

In amending the subsection, the legislature specifically stated:

The Legislature finds that the opinion in State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), is contrary to legislative intent and that a person’s failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435, Florida Statutes. The Legislature intends that a person must register as a sexual offender pursuant to s. 943.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997, has:

(1) No sanction imposed upon conviction; or

(2) Been released from a sanction imposed upon conviction.

See ch. 2021-156, § 1, Laws of Fla. (2021) (emphases added). The legislature also amended section 943.0435(1)(h)1.a.II, removing "fine" from the list of penalties that could be construed as a "sanction."

Armed with this new enactment, the State sought to convince the circuit court that the charge against Mr. Crose should be allowed to proceed. The State didn’t go so far as to suggest that the amended version of the statute should apply, after the fact, to Mr. Grose’s criminal charge, which arose from conduct that allegedly occurred some two years before the amendment went into effect. But the State did maintain that the circuit court could— and should—consider the legislature’s stated intention when it amended the statute because the amendment "effectively overturn[ed] James."

The circuit court was not persuaded by the State’s arguments. In granting Mr. Grose’s motion to dismiss, the, court ruled:

Based on the facts and circumstances of this case and the language of the applicable statute, the Court finds the Defendant’s argument persuasive and the James case controlling, Though[] the legislature has now made its intent clear, the modification has not yet gone into effect. At the time the Defendant committed the alleged crime in this case, he was on probation and still under the supervision of the Department of Corrections.

The State then filed a motion for rehearing and fleshed out its prior argument. On rehearing, the State pointed out that the amendment to section 943.0435 had, in fact, gone into effect by the time the court ruled upon the motion to dismiss,² that James was not controlling "because the James court did not have the benefit of a clear statement of the Legislature’s intent, as this Court now does," and that since the circuit court now knew what the legislature’s intent about the prior version of the statutory language truly was (that is, that the completion of any part of "a sanction" should trigger the requirement to register as a sex offender), the court should deny Mr. Grose’s motion to dismiss.

Mr. Crose (now represented by the Public Defender’s office) countered that notwithstanding the subsequent amendment to the statute, James was controlling precedent and that, as such, it had to be applied to Mr. Grose’s case. Furthermore, he argued that allowing the legislature to retroactively refine the application of a criminal statute violated the constitutional prohibition against ex post facto laws.³

The court again agreed with Mr. Crose and entered an amended order granting his motion to dismiss. In addition to the reasoning set forth in its prior order, the court added:

[A]pplying the new 2021 statutory definition to Defendan

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