State v. McKenzie

331 So.3d 666

STATE of Florida, Petitioner,

v.Brian K. MCKENZIE, Respondent.

No. SC19-912

Supreme Court of Florida.

September 23, 2021

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, and Jeffrey Paul DeSousa, Deputy Solicitor General, Tallahassee, Florida, and Wesley Heidt, Bureau Chief, Daytona Beach, Florida, for Petitioner

Terrence E. Kehoe of Law Office of Terrence E. Kehoe, Orlando, Florida, for Respondent

PER CURIAM.

The issue in this case is whether a circuit court has jurisdiction to impose a sexual predator designation on an offender who qualifies under section 775.21, Florida Statutes (2018), the Florida Sexual Predators Act, when the sentencing court did not impose the designation at sentencing and the offender's sentence has been completed. This case is before the Court for review of the decision of the Fifth District Court of Appeal in McKenzie v. State , 272 So. 3d 808 (Fla. 5th DCA 2019), which decided the issue by holding that imposition of the designation was precluded. The Fifth District certified that its decision is in direct conflict with the decision of the Third District Court of Appeal in Cuevas v. State , 31 So. 3d 290 (Fla. 3d DCA 2010). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we reject the Fifth District's conclusion that the circuit court was deprived of jurisdiction to impose the sexual predator designation in such circumstances, we quash McKenzie and approve Cuevas .

BACKGROUND

In 2009, as part of a negotiated plea agreement with the State, Brian K. McKenzie entered a no contest plea to one count of engaging in sexual activity with a child while in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2002). In accordance with the written plea agreement, McKenzie was sentenced to six months’ incarceration, followed by two years of sex offender community control, followed by three years of sex offender probation. Neither McKenzie nor the State appealed the sentence.

McKenzie completed all portions of his sentence in 2015. Based on the completion of McKenzie's sentence, the Department of Corrections informed McKenzie that he was no longer under its supervision.

In 2018, the State filed a notice with the trial court, stating that McKenzie's original offense, violation of section 794.011(8)(b), was an enumerated offense under section 775.21—which obligated the trial court to designate McKenzie as a sexual predator. McKenzie filed a written objection, asserting that the court no longer had jurisdiction in the matter because he had completed all the terms of his criminal sentence. The trial court set a hearing on the issue.

After the hearing, the trial court determined that section 775.21 placed an obligation on the court to designate McKenzie as a sexual predator and that McKenzie must comply with the registration requirements for those given such a designation. The trial court relied on the Third District's Cuevas opinion, the only district court opinion that then had directly answered the issue before the trial court: whether a trial court has jurisdiction to impose a sexual predator designation under section 775.21 when the offender's sentence has already been completed. See Cuevas , 31 So. 3d at 291-92 (holding that "designation as a sexual predator [under section 775.21 ] may be ordered after a defendant has served his sentence and been released" (emphasis added)). McKenzie appealed the trial court's decision.

Upon appeal, the Fifth District held that section 775.21 does not grant jurisdiction to a trial court to impose a sexual predator designation on an offender when the offender's sentence has already been completed.

McKenzie , 272 So. 3d at 808-09, 811 ("We conclude that the trial court lacked jurisdiction to enter the order .... [S]ection 775.21 ... did not grant authority to the trial court to belatedly designate McKenzie as a sexual predator."). In reaching its holding, the Fifth District noted that section 775.21(5)(a) "references three types of proceedings in which a trial court is to designate an otherwise qualified offender to be a sexual predator." Id. at 810. The court made the following observations regarding section 775.21(5)(a) :

[S]ection 775.21(5)(a)1. sets forth the procedure to be followed when an offender is determined to be a sexually violent predator pursuant to a civil commitment proceeding under Chapter 394. [S]ection 775.21(5)(a)2. sets forth the procedure to be followed when an offender is before the court for sentencing. [S]ection 775.21(5)(a)3. sets forth the procedure to be followed when the offender was civilly committed or committed a similar criminal sexual offense in another jurisdiction, but has established or maintained a permanent, temporary, or transient residence in Florida.

Id. The court stated further, "McKenzie was an offender who should have been, but was not, designated as a sexual predator at the time of sentencing." Id. (citing § 775.21(5)(a) 2., Fla. Stat. (2009)).

The Fifth District focused on section 775.21(5)(c), which states in part:

If the Department of Corrections, the [D]epartment [of Law Enforcement], or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in subparagraph (a)1., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)3.

The court stated, "Notably, ... section [775.21(5)(c)] references subsections (5)(a)1. and (5)(a)3., but fails to reference subsection (5)(a)2.—the subsection applicable to McKenzie." McKenzie , 272 So. 3d at 810.

The Fifth District reasoned that the absence of a reference to section 775.21(5)(a) 2. in section 775.21(5)(c) means that section 775.21(5)(c) does "not provide a ‘recapture’ provision for offenders described in subsection (5)(a)2." Id. at 811 (citing Cuevas , 31 So. 3d at 292 (Shepherd, J., dissenting)). Accordingly, the Fifth District concluded, for offenders who fall under section 775.21(5)(a) 2., section 775.21 does not grant jurisdiction to trial courts to designate the offender as a sexual predator if the offender's sentence has already been completed. Id. The Fifth District reversed, remanded, and certified conflict with the Third District's Cuevas opinion. Id.

The Certified Conflict Case: Cuevas

Defendant Cuevas "entered a plea of guilty to charges of lewd and lascivious molestation on a child under 12 and lewd and lascivious conduct on a child under 16, in violation of sections 800.04(5)(b) and 800.04(6)(b), Florida Statutes (2000)," which were enumerated offenses under section 775.21. Cuevas , 31 So. 3d at 291. Cuevas was sentenced to 56 months of incarceration, but the trial court failed to designate Cuevas as a sexual predator at the time of sentencing. Id. Shortly before Cuevas was released from incarceration, the State filed a motion with the trial court to designate Cuevas as a sexual predator under section 775.21. Id. Cuevas was released from incarceration prior to the trial court setting a hearing on the State's motion. Id. After the hearing, the trial court granted the State's motion to designate Cuevas a sexual predator under section 775.21. Id. Cuevas appealed.

Upon appeal, the Third District held that when an offender was required to be designated a sexual predator under 775.21 at the time of sentencing but the trial court failed to meet that requirement, section 775.21(5)(a) 2. does not bar the trial court's subsequent exercise of jurisdiction. Id. The court may still impose the sexual predator designation after the completion of the offender's sentence. Id. In reaching its holding, the Third District noted that section 775.21(4)(a) places an obligation on the trial court to designate an offender as a sexual predator. Id. n.2 (noting that section 775.21(4)(a) states that "an offender shall be designated" as a sexual predator).

The court then turned its attention to section 775.21(5)(c). Id. at 292. The Third District explicitly rejected the argument that the mentioning of sections 775.21(5)(a) 1. and 775.21(5)(a)3. in section 775.21(5)(c) thwarted the trial court's jurisdiction. Id. The court stated that "[a] careful reading of the special language applicable to the two categories (section[s] 775.21(5)(a)1. and [775.21(5)(a)]3.) reveals that those are special notice and venue rules for those special cases, not exclusive descriptions of the only circumstances in which the State can perform its duty after the defendant is sentenced." Id. (footnote omitted). The court explained further:

In the case of [s]ection 775.21(5)(a)1., a sexually violent predator under [s]ection 775.21(4)(d), one of the three enumerated state offices must notify the state attorney who prosecuted the offense. In the case of [s]ection [775.21](5)(a)3., a sexual predator who was convicted of a qualifying offense in another jurisdiction before establishing or maintaining a residence in a Florida county, notice is to be given to the state attorney of that new county. In the case of a person like Cuevas, indisputably qualified to be designated a sexual predator but not designated at sentencing as the Legislature directed, no special notifications or interjurisdictional rules are required, and [s]ection 775.21(5)(c) then specifies (without limitation) that the "state attorney shall bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria."

Id. n.3 (quoting § 775.21(5)(c), Fla. Stat.).

ANALYSIS

To resolve the certified conflict, we are called upon to determine whether a circuit court has jurisdiction to impose a sexual...