In re: Amendments to the Florida Small Claims Rules

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Renoit Saintelien v. State of Florida

SC06-1888

>> PLEASE RISE.
HEAR YE HEAR YE HEAR YE.
SUPREME COURT OF FLORIDA IS NOW
IN SESSION, ALL WHO HAVE CAUSE
TO PLEA, DRAW NEAR, GIVE
ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THIS GREAT STATE OF FLORIDA AND
THIS HONORABLE COURT.
>> GOOD MORNING.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS AND
WELCOME TO THE ORAL ARGUMENT
CALENDAR FOR TUESDAY, JANUARY
5th, 2007, BEFORE WE BEGIN OUR
ARGUMENTS WE WOULD TAKE THE APP
TRUANT TO WELCOME THE FSU LAW
SCHOOL SUMMER UNDERGRADUATE
PROGRAM, WE ARE GLAD YOU ARE
HERE AND WILL BE OBSERVING FINE
ATTORNEYS AND FINE ARGUMENTS
THIS MORNING.
CASES OF MAJOR IMPORTANCE TO
THE STATE OF FLORIDA.
SO, WE MOVE DIRECTLY TO OUR
FIRST CASE.
CALL IT.
>> GOOD MORNING, MAY IT PLEASE
THIS COURT, BEVERLY POHL OF
BROAD & CASSEL, FOR RENOIT
SAINTELIEN.
THIS CASE PRESENTS YET ANOTHER
IN THE LONG LIST OF CASES
DEALING WITH THE FLORIDA SEXUAL
PREDATORS ACT AND, IN
PARTICULAR, WHETHER A CHALLENGE
TO THE LEGALITY OF A SEXUAL
PREDATOR DESIGNATION CAN BE
RAISED VIA A 3.800A
POSTCONVICTION MOTION.
>> MAY I ASK YOU, I KNOW THERE
IS A BROADER PROCEDURAL ISSUE
BUT AS FAR AS YOUR CLIENT --
AND I ASSUME YOU AREZZ!!$$
COURT-APPOINTED, ON THIS, HIS
CLAIM IS HE DIDN'T GET WHAT HE
BARGAINED FOR.
>> THAT'S CORRECT.
>> AND WOULDN'T THAT, IN ANY
EVENT, NOT BE A 3.800, EVEN
ASSUMING WE WOULD SAY IT COULD
BE CONSIDERED A LEGAL --
ILLEGAL SENTENCE AND SITUATION
WHERE CLEARLY THE PERSON
WOULDN'T QUALIFY IN A SITUATION
WHERE THEY ARE SAYING THAT
THEIR PLEA WAS -- DID NOT
INCLUDE IT, WOULDN'T IT -- HOW
WOULD THAT BE A 3.800 ANY WAY?
ASSUMING IT WAS, YOU KNOW, A
NORMAL PLEA CASE.
>> WELL, THE NAME OF HIS PRO SE
MOTION WAS IT WAS AN ILLEGAL
SENTENCE PRECISELY BECAUSE IT
WAS NOT PART OF THE BARGAINED
FOR, NEGOTIATED PLEA BUT I
WOULD LIKE TO POINT OUT, YOUR
HONOR, THE MERITS OF THE CASE
ARE NOT BEFORE THE COURT.
THE MERITS --
>> NO, NO, NO, BUT NORMALLY IF
WE ARE GOING TO CONSIDER
WHETHER SOMETHING IS PART OF A
NEGOTIATED PLEA AND WHETHER
SOMEBODY WAS SEEKING TO
WITHDRAW THE PLEA, WE WOULD
LOOK AT THAT ASSUMING IT WAS A
NORMAL CRIMINAL CASE, THROUGH
3850, BECAUSE IT MIGHT INVOLVE
THE TAKING OF TESTIMONY AS TO
WHAT WAS AGREED TO OR SOMETHING
OF THAT NATURE.
AND I DIDN'T SEE THAT AS BEING
PART OF WHAT ANYONE SAYS.
>> WELL, I DON'T THINK IT IS
APPROPRIATE TO GET DRAWN TOO
DEEPLY INTO THE MERITS OF THE
CASE BUT I THINK IT WOULD BE
POSSIBLE TO EXAMINE THE
LEGALITY OF THE SEXUAL PREDATOR
DESIGNATION BASED UPON THE
FACTS OF RECORD, WHICH DO
INCLUDE THE TRANSCRIPT OF THE
PLEA, COLLOQUY, THE PLEA
DOCUMENTS THEMSELVES AND THOSE
ALL GO TO THE MERITS WHICH WERE
NEVER --
>> THE PROBLEM WITH THAT
PROCEDURALLY IS THAT IF YOU
HAVE TO GO INTO THE RECORD, AND
INTO THE FACTS, OF THE CASE,
THEN THE ONLY PROCEDURE WE HAVE
ASSUMING WE DID THIS UNDER THE
CRIMINAL RULE WOULD BE 3.850
AND THAT HAS A TWO-YEAR
LIMITATION.
WHICH -- THIS FAR EXCEEDED TWO
YEARS, CORRECT.
>> JUSTICE WELL, I RESPECTFULLY
DISAGREE IT IS 3.800 IS
PERFECTLY SUITED TO A CASE
WHERE YOU HAVE TO LOOK AT THE
RECORD, THE LIMITATIONS, THE
KINDS OF CASES THAT CAN ONLY BE
HEARD UNDER 3.850 ARE THOSE
THAT REQUIRE FACTUAL
DEVELOPMENT, A FACTUAL
PRESENTATION AT IT HEARING BUT
WHERE EVERYTHING IS DEVELOPED
ALREADY AND ON THE FACE OF THE
RECORD, 3.800 WOULD BE AN
APPROPRIATE KIND --
>> BUT I CAN'T THINK OF A CASE
THAT INVOLVES A NEGOTIATED PLEA
WHERE SOMEBODY WOULD BE SAYING
IT IS NOT PART OF THE BARGAIN
AS OPPOSED -- AS OPPOSED TO
UNDER NO SET OF CIRCUMSTANCES
COULD IT BE IMPOSED, WHERE THAT
COULD BE RAISED AT ANY TIME
UNDER 3.800A.
>> WHERE THE BARGAIN IS IN
WRITING AND IS OF RECORD, I
DON'T SEE WHY IT WOULDN'T
CONCEPTUALLY BE POSSIBLE, YOUR
HONOR BUT AGAIN IT GOES TO THE
MERITS, THAT WERE NOT BRIEFED
AND REACHED BY THE 4th
DISTRICT.
THE QUESTION FOR THIS COURT IS
REALLY A PROCEDURAL QUESTION,
ASSUMING THAT THERE IS
COLORABLE ALLEGATION OF
ILLEGALITY OF THE SEXUAL
PREDATOR DESIGNATION CAN THAT
BE RAISED IN A 3.--
>> AND YOUR POINT IS, IT IS AN
IM PRACTICE KAELT TO TRY TO DO
IT THROUGH A CIVIL PROCEEDING,
AS AN -- IT IS MORE OF A
PRACTICAL SOLUTION AS OPPOSED
TO WHETHER THIS IS A SENTENCE,
BECAUSE WE CLEARLY SAID THIS
TYPE OF DESIGNATION IS NOT PART
OF THE SENTENCE.
>> AND I'M PERFECTLY WILLING TO
FACE WHAT THE STATUS OF THE LAW
IS NOW AND THIS IS, IT HAS BEEN
ESTABLISHED THAT A SEXUAL
PREDATOR DESIGNATION IS NOT A
SENTENCE AND NOT A PUNISHMENT.
>> BUT WE HAVE SAID IT IS A
COLLATERAL CONSEQUENCE OF THE
PLEA OR THE CONVICTION, CORRECT?
>> YES, YOUR HONOR, YOU HAVE
SAID THAT.
>> SO HOW DO WE DEAL WITH OTHER
SITUATIONS THAT WE HAVE SAID
ARE COLLATERAL CONSEQUENCES OF
A PLEA OR CONVICTION?
HOW ARE THOSE KINDS OF ISSUES
RAISED?
AREN'T THEY NORMALLY RAISED IN
A 3.850 MOTION.
>> BUT THIS IS A UNIQUE SPECIES
OF COLLATERAL CONSEQUENCE AND
THIS COURT IN ROBINSON SAID
THAT A SEXUAL PREDATOR
DESIGNATION AND ONE REALLY
CANNOT ARGUE, IS A SUBSTANTIAL
INFRINGEMENT UPON A PERSON'S
LIBERTY INTERESTS AND MAKE IT
VERY DIFFERENT FROM ANY OTHER
COLLATERAL CONSEQUENCE.
EVERY --
>> HOW DIFFERENT FROM THE
COLLATERAL CONSEQUENCE OF BEING
DEPORTED?
I MEAN, THAT SEEMS TO ME THAT
IS A PRETTY SUBSTANTIAL BE
LIBERTY INTEREST INVOLVED
THERE.
YOU DON'T RAISE WHETHER OR NOT
YOU WERE PROPERLY TOLD THAT YOU
COULD BE DEPORTED IN A 3.800
MOTION, DO YOU?
>> BUT EVERY PLEA THAT IS
ENTERED INTO NOW, THE TRIAL
JUDGE HAS TO ADVISOR SEVER --
-- EVERY, SINGLE DEFENDANT OF
THE POTENTIAL FOR DEPORTATION
AND IN THIS CASE THERE IS NO
REQUIREMENT THAT A DEFENDANT
WHO IS ENTERING INTO A PLEA BE
TOLD ME MIGHT HAVE LIFELONG AND
ONEROUS BURDENS IMPOSED ON HIM
DUE TO THE SEXUAL PREDATOR ACT.
>> LET ME ASK YOU ABOUT THE
LANGUAGE OF 3.800A.
YOU OBVIOUSLY ARE RELYING ON
KING.
FROM THE 2nd AND IT SEEMS LIKE
IN THAT CASE THE DCA REALLY DID
NOT ANALYZE THE LANGUAGE OF
3.800A TO DETERMINE WHETHER
THIS WOULD FIT UNDER THAT RULE.
AND SAID IT IS NOT WORKING OUT
IN THE CIVIL CONTEXT AND YOU
CAN DO IT UNDER THE CRIMINAL
CONTEXT, UNDER 3.800A AND SEEMS
LIKE WHEN YOU ANALYZE THE
LANGUAGE OF 3.800 A IT IS NOT
ANYTHING THAT COMES UNDER THE
TYPES OF LIMITED ORDERS THAT
ARE DESIGNED TO BE FILED AT ANY
TIME AND, YOU KNOW, 300A IS A
VERY LIBERAL RULE IN THE SENSE
THERE IS NO TIME LIMITATION
WHATSOEVER AND CON COMET TAENL
IS A NARROW RULE DESIGNED TO
ADDRESS SPECIFIC TYPES OF
ORDERS.
AND DOESN'T SEEM TO ME THAT IT
IS AN ILLEGAL SENTENCE UNDER AN
INCORRECT CALCULATION ON A
SCORE SHEET, NOT GRANTED PROPER
CREDIT FOR TIME SERVED OR OTHER
VERY LIMITED THINGS AND UNDER
WHAT SECTION WOULD IT FALL
UNDER?
IN ORDER TO USE 3.800A THE
COURT WOULD HAVE TO ADOPT A
POSITION THAT THIS IS AT THE
LEAST IN THE NATURE OF A
SENTENCE OR PART OF THE
SENTENCING PROCESS.
ITS SOMETHING IMPOSED BY THE
CRIMINAL COURT EXCLUSIVELY AND
THE DEFENSE --
>> EVEN IF WE SAE IT IS PART OF
THE SENTENCING PROCESS AND I
MAY AGREE WITH YOU ON THAT, IT
MAY PUT IT UNDER 3.850 AND
UNDER 3.800B IN THE SENSE YOU
CAN APPEAL AFTER THE ORDER
DURING THE APPEAL OF A CRIMINAL
SENTENCING AND THOSE KINDS OF
THINGS BUT I THINK IT'S AN EVEN
STRETCH -- ALMOST AN ABYSS TO
SAY IT IS AN ILLEGAL SENTENCE.
>> AND I UNDERSTAND THE COURT'S
CONCERN WITH THAT AND PERHAPS
THE RIGHT ANSWER, IF 3.800A IS
NOT REALLY BROAD ENOUGH TO
ENCOMPASS THIS SORT OF
SITUATION, PERHAPS THE SANS IS
WE NEED ANOTHER RULE THAT --
>> CAN YOU ANSWER TO ADD IT
UNDER 3.850?
WHY IS THIS THE TYPE OF THING
THAT SHOULD BE ADDRESSED AT ANY
TIME WHEN EVEN UNDER KING YOU
HAVE FOUR OTHER METHODS OF
ADDRESSING THIS.
YOU CAN IMPOSE IT UNDER -- --
DURING THE APPEAL, RIGHT?
YOU CAN IMPOSE IT UNDER 3.800B,
YOU CAN DO IT UNDER 3.850.
IN THE KIFL CONTEXT, IF IMPOSED
IN A KIFL CONTEXT YOU WOULD DO
IT UNDER CIVIL -- CIVIL RULES,
1.-- 1.540.
>> THANK YOU, 1.540 OR UNDER
9.140.
IF IT WAS DONE AFTER THE
SENTENCING, DO IT UNDER 9.140.
BUT I THINK THE PROBLEM YOU
HAVE IS THAT IN ORDER FOR TO
YOU WIN THIS CASE, WE'D HAVE TO
GO TO THE COMPLETE OTHER
EXTREME AND SAY, NOT ONLY COULD
YOU DO IT UNDER ALL OF THOSE
TYPES OF PROCEEDINGS, BUT YOU
CAN ALSO DO IT AT ANY TIME.
WHY SHOULD WE GO TO THAT
EXTREME.
>> YOU SHOULD GO TO SOME -- IF
NOT DO THAT -- TO THAT EXTREME
YOU SHOULD FIND SOME WAY TO
MAKE IT SOMETHING THAT CAN BE
CHALLENGED AT ANY TIME OF THE
UNIQUE PROVISIONS OF THIS
STATUTE AND HOW THEY ARE
INCREDIBLY BURDENSOME ON A
PERSON FOR THEIR ENTIRE LIFE.
>> WE HAVE THE OTHER COLLATERAL
CONSEQUENCES SUCH AS THE
JUSTICE MENTIONED, DEPORTATION,
BUT WE ALSO HAVE THE MOUNTING
PUNISHMENTS THAT COME LATER ON
DUE TO THE NUMBER OF
CONVICTIONS YOU MAY HAVE AND
THAT KIND OF SCENARIO AND MAY
PLEAD GUILTY ON ONE -- ON ONE
OCCASION, AND THEN IT COMES
BACK TO HAWN YOU MANY YEARS
LATER SO THE SAME ARGUMENT AND
WE HAVE ALREADY CROSSED THAT
BRIDGE, THOSE ARE COLLATERAL
CONSEQUENCES OF THESE THINGS,
HAVE WE NOT.
>> I'M NOT QUITE SURE I
UNDERSTAND PRECISELY THE
QUESTION.
>> THE QUESTION IS, IN THE
CRIMINAL CAN TEXT, IF YOU PLEAD
GUILTY TO A CERTAIN CRIME THAT
IS USED TO HABITUALIZE YOU AND
DO OTHER THINGS TO YOU LATER ON
AND IS NOT PART OF THE PLEA
COLLOQUY BUT ARE COLLATERAL
CONSEQUENCES AND THOSE ARE ALL
HANDLED, ARE THEY NOT, THROUGH
A 3.850-TYPE MECHANISM.
>> THOSE CONVICTIONS, THOSE
SENTENCES COULD BE BUT UNLESS
THEY WERE ILLEGALLY IMPOSED.
I'M NOT SAYING THAT NO ARGUMENT
COULD BE FASHIONED --
>> YOU SAY THE SAME THING I
THINK DID NOT AGREE THAT THIS
COULD BE USED AGAINST ME, THAT
WAS NOT PART OF MY PLEA IT
COULD BE USED IN THE FUTURE AND
WE'VE CROSSED THE BRIM BUT IS
NOT A BASIS TO SET ASIDE THE
PLEA --
>> I THINK IT IS IMPORTANT TO
NOTE THAT NO COURT, NONE OF THE
DISTRICT COURTS OF APPEAL, AND
THERE HAVE BEEN MANY, MANY
CASES INVOLVING THE STATUTE,
HAVE SUGGESTED THAT THERE IS
ANY KIND OF WAIVER, IF A
DEFENDANT DOESN'T SEEK TO SET
ASIDE AN ILLEGALLY IMPOSED
SEXUAL PREDATOR DESIGNATION.
>> SEE, THE OTHER CASES -- AND
THAT IS WHY I STILL HAVE
PROBLEMS WITH THE FACTS OF THIS
CASE -- THE OTHER CASES WERE
WHERE THE STATE CONCEDED THAT
THE QUALIFYING -- CRIME WAS NOT
A QUALIFYING CRIME FOR SEXUAL
PREDATOR STATUS AND IN THOSE
SITUATIONS I CAN UNDERSTAND
THAT IT COULD EVEN POTENTIALLY
FIT UNDER THE 3.800 MODE
BECAUSE NO COURT COULD EVER
HAVE IMPOSED IT.
THAT IS NOT WHAT WE ARE DEALING
WITH HERE AND I THINK WHAT WE
NEED TO COME UP WITH IS A
WORKABLE SOLUTION SO WE DON'T,
YOU KNOW, HAVE ALL OF THE
COURTS KIND OF FASHIONING THEIR
OWN REMEDY, BUT I'M NOT SURE
THAT THE APS WOULD BE, WELL,
EVERYTHING WOULD JUST GO -- BE
THROWN INTO 3.800 AND I THINK
THAT IS WHAT JUSTICE CON TAROT
IS POINTING OUT, THAT THERE
WOULD BE OTHER WAYS TO DEAL
WITH IT, IF TRULY IT WOULD BE A
BASIS FOR SET ASIDE THE PLEA OR
SAYING THIS WASN'T PART OF WHAT
WAS BARGAINED FOR, BUT AGAIN I
WOULD THINK IT WOULD HAVE TO BE
WITHIN A TIME-LIMITED SITUATION.
AS OPPOSED TO THE ONE WHERE IT
NEVER COULD BE QUALIFYING AND
YOU AGREE THAT THIS CRIME WAS
ONE THAT WOULD MEET THE
QUALIFYING DEFINITION FOR
SEXUAL PREDATOR STATUS.
>> YES.
I DO AGREE WITH THAT AND ITS
IMPORTANT TO NOTE THAT HE DID
NOT SEEK TO SET ASIDE HIS PLEA.
ONLY TO SET ASIDE THE SEXUAL
PREDATOR DESIGNATION ENTERED
FOUR MONTHS AFTER --
>> THEY TRY AN PARSE IT AND
THAT IS THE PROBLEM, ONE IS A
NATURAL CONSEQUENCE AND I THINK
THAT IS WHAT JUSTICE LEWIS WAS
ALLUDING TO ABOUT THE CASES
WHERE IT COMES BECAUSE OF THE
NATURE OF THE -- NATURE OF THE
CRIME BUT IS NOT NECESSARILY A
BASIS FOR SETTING ASIDE THE
PLEA.
>> THE 4th DISTRICT HAS NOT
SQUARELY ADDRESSED THAT
QUESTION IN THE PARTICULAR
CONTEXT.
THERE IS A CASE FROM THE 2nd
DISTRICT THAT HOLDS THAT IT
DOESN'T VIOLATE A PLEA
AGREEMENT TO IMPOSE LATER
SEXUAL PREDATOR DEZ NATION BUT
AT LEAST IN THE 4th DISTRICT
IT'S NOT A DECIDED QUESTION AND
I WOULD HATE FOR THE PROCEDURAL
QUESTION BEFORE THIS COURT TO
GET CUT SHORT TALKING ABOUT THE
MERITS THAT HAVEN'T EVEN BEEN
BRIEFED.
>> LET ME ASK YOU ON THE
PROCEDURAL ASPECT, ON NICHOLSON,
IT SAYS FROM NOW ON THE -- IT
MUST BE OBSERVED BY CON TEM
PRAN NUS OBJECTION OR A RULE
800B MOTION, WHY ISN'T THAT
APPROPRIATE.
>> NICHOLSON WAS A DIRECT
APPEAL CASE AND SUBSEQUENT TO
THAT IN A CASE, CABRERA, THAT
COURT SUGGESTED AT THE END OF
THE DECISION THAT IT COULD BE
RAISED IN A 3.800A AND SO THE
5th DISTRICT DOES NOT LIMIT --
HAS NOT LIMITED ITSELF TO THE
3.800B REMEDY.
IT HAS GONE BEYOND THE STATUS
OF THE LAW IN NICHOLSON.
>> HOW ABOUT TAKING THE EXAMPLE
THAT JUSTICE PARIENTE HAS POSED
TO YOU AND SEE HOW YOU WOULD
APPLY IT.
TO THE ISSUES YOU HAVE HEAR.
THAT IS, WHAT SHE SAID IS THAT
FOR EXAMPLE, IF THE QUALIFYING
CRIME HAS BEEN DETERMINED NOT
TO BE A QUALIFYING CRIME UNDER
THE LAW SO THAT THESE
CONSEQUENCES CANNOT ATTACK --
ATTACH TO THAT, THAT WE IN
ESSENCE HAVE SAID THAT THAT
CLEARLY WOULD BE AN ILLEGAL
SENTENCE.
ALL RIGHT?
NOW, TAKING THAT, THAT IS, THAT
IF YOU GET CONVICTED OF
RECKLESS DRIVING, IF YOU DON'T
END UP BEING DESIGNATED AS A
SEXUAL PREDATOR, AND SINCE THAT
CONVICTION IS THERE, FOR ALL
TIME, AND YOU CAN SEE THAT ON
THE RECORD, AND IF THE LEGAL
RULING -- THE LAW IS, YOU KNOW,
THAT IS NOT A QUALIFYING
OFFENSE, THEN IT WOULD SEEM
THAT WOULD BE THE CLASSIC CASE
FOR THE 3.800A.
NOW HOW IS IT THAT YOUR
SITUATION HAS ALL THE EARMARKS
OF THAT SAME ILLEGAL
DEFINITION?
EXPLAIN TO US WHY WE SHOULD FIT
YOUR SITUATION INTO THAT KIND
OF, YOU KNOW, THE WAY THAT WE
HAVE DEFINED ILLEGALITY.
>> YOU ARE ASKING ME AGAIN TO
ARGUE THE MERITS OF THIS CASE,
AND I --
>> HAS A LOT OF THE CASE, THEN,
JUST BEEN SPENT ON THE ARGUMENT
BETWEEN YOUR CLIENT AND THE
STATE AND THE STATE SAYING, GO
FILE A CIVIL ACTION OR, YOU
KNOW, THAT AS OPPOSED TO
RESOLVING THIS AND THROUGH A
RULE OF CRIMINAL PROCEDURE, IS
THAT A PART OF WHAT HAS
HAPPENED HERE.
>> WHAT HAPPENED HERE WAS THAT
THE 4th DISTRICT COURT OF
APPEALS SAYS THAT YOU CAN'T USE
3.800A TO RAISE THE TYPE OF
CLAIM THAT YOU HAVE RAISED.
THE SEXUAL -- CHALLENGE TO THE
SEXUAL PREDATOR DESIGNATION AND
THEY SAID, PROCEDURAL WILL YOU
IF USED THE WRONG PROCEDURE AND
MUST FILE A CIVIL SUIT.
>> THAT IS THIS PROBLEM, SIMPLY
STOPPED AND SAID THIS ISN'T A
3.800 TYPE OF CLAIM, PROBABLY
WOULDN'T EVEN BE HERE BECAUSE,
FRANKLY, I DON'T THINK IT IS.
EVEN FIT WERE A CRIMINAL CASE,
AND I THINK THAT IS WHY WE ARE
STRUGGLING BECAUSE IF WE WERE
TO SAY PRO NOUPS THESE CAN BE
RAISED 3.800 I STILL SAY YOURS
COULDN'T BE RAISED THAT WAY AND
WE'D HAVE TO ADDRESS THAT.
OTHERWISE WE'D CREATE HAVOC FOR
ALL OTHER TYPES OF PLEA
AGREEMENTS IN AN EFFORT TO
FASHION SOMETHING FOR -- THAT
IS FAIR WE DON'T WANT TO HAVE
OUR OWN COLLATERAL CONSEQUENCES,
DON'T YOU, AS A -- DON'T YOU
SEE THAT THAT IS A PROBLEM FOR
THIS COURT IN THE SITUATION.
>> I DO BUT I SEE THAT THE
CIVIL REMEDY THE 4th DISTRICT
SUGGESTED AND THE FIRST
DISTRICT RECENTLY JOINED IS
COMPLETELY THE WRONG APPROACH.
>> AND THAT MAY BE RIGHT BUT
BEYOND THAT, I'M NOT SURE TO
SAY BUT IT GOES IN TO 3.800 IS
--
>> AND MAY EVEN GO INTO SOME
RULE THAT DOES NOT YET EXIST
BECAUSE WHERE YOU HAVE A
COLLATERAL CONSEQUENCE WHERE IT
IS LIFELONG, IMPOSED BURDENS
AND RESTRICTION AND PUBLIC
STIGMA TO THE EXTENT THIS IS
AND EVERYBODY UNDERSTANDS THERE
HAS BEEN PLENTY OF LITIGATION
ABOUT THE DEGREE OF A BURDEN
THE STATUTE PUTS ON SOMEBODY,
THERE MUST BE A WAY IF THERE IS
A VALID ALLEGATION IT SHOULDN'T
HAVE BEEN IMPOSED, MUST BE A
WAY TO GET --
>> A LOT OF DECISIONS TRIAL
COURTS AND JURIES MAKE THAT
HAVE LIFELONG CONSEQUENCES, BUT
WE DON'T ALLOW DEFENDANTS TO
APPEAL THOSE OR OBJECT TO THOSE
TEN YEARS AFTER THE FACT.
WE GIVE A TWO-YEAR TIME
ELIMINATION FOR THE --
LIMITATION FOR THE VAST
MAJORITY OF DECISIONS RENDRD IN
THE TRIAL COURTS.
>> AND I RETURN TO MY ARGUMENT
THIS IS IN THE NATURE OF A
SENTENCE EVEN FIT IS NOT --
>> ARE EVEN CERTAIN SENTENCES
THAT CANNOT BE APPEALED TWO
YEARS LATER.
IT HAS TO BE AN ILLEGAL
SENTENCE FROM THE RECORD
WITHOUT ANY TESTIMONY OR
ANYTHING ADDITIONAL THAT YOU
CAN DO IT AFTER TWO YEARS AND
THE VAST MAJORITY EVEN OF
SENTENCES ARE CONTAINED WITHIN
THE TWO-YEAR TIME LIMITATION.
>> AND ONE COULD EXAMINE THE
RECORD WITHOUT TAKING ANY
TESTIMONY AND MAKE A DECISION
ABOUT WHETHER OR NOT THIS
SEXUAL PREDATOR DESIGNATION WAS
PROPERLY IMPOSED IN A GIVEN
CASE AND ONE COULD DO THAT.
>> THAT MAY BE TRUE IN SOME
CASES AND NOT OTHER, WOULDN'T
YOU SAY?
>> NO.
>> IT WOULD DEPEND ON THE CASE.
>> I DON'T THINK SO.
THE RECORD WILL SHOW.
THERE IS ONE PROBLEM AND THAT
IS THE PROBLEM JUSTICE PARIENTE
MENTIONED, IF -- JUSTICE AM
STEAD IF THE UNDERLYING
CONVICTIONS WERE NOT QUALIFIES
CONVICTIONS, THAT IS ONE SORT
OF PROBLEM AND EVEN IN THAT
CLASSIC CASE, WHAT I'M HEARING
FROM THE COURT IS THAT THERE
OUGHT NOT TO BE A REMEDY UNDER
3.800 AND THAT IS THE PERSON
WHO HAS BEEN UNCONSTITUTIONALLY
DESIGNATED AS A SEXUAL
PREDATOR.
>> WHAT YOU ARE HEARING IS THAT
WE ARE ASKING YOU TO FIT THIS
WITHIN THE WAY THAT WE HAD
DESCRIBED THIS REMEDY OF
3.800A.
FOR INSTANCE, HAVE YOU ARGUED
HERE THAT THE TRIAL COURT LAST
JURISDICTION, LOST AUTHORITY TO
EVER IMPOSE THIS CLASSIFICATION
AFTER 30 DAYS OR, YOU KNOW,
AFTER THE TIME OF APPEAL --
>> I CAN'T --
>> IN OTHER WORDS, WHAT HAVE
YOU ARGUED OR ASSERTED WHICH IS
YOUR BURDEN UNDER THIS RULE TO
SAY YOU FIRST SAY, WE ARE
CLAIMING THAT THIS IS AN
ILLEGAL SENTENCE, FOR PURPOSES
OF RULE 3.800A.
BECAUSE -- AND WHAT THIS IS
"BECAUSE" HERE?
>> WELL, THE "BECAUSE" ALLEGED
IN THE MOTION IS BECAUSE IT
WASN'T PART OF THE NEGOTIATED
PLEA.
AND THAT IS A SEPARATE LEGAL
QUESTION THAT IS NOT AT THIS
MOMENT REALLY BEFORE THE COURT.
AND I SEE I'M RUNNING INTO MY
TIME --
>> ALREADY EXHAUSTED ALL OF
YOUR TIME.
THANK YOU VERY MUCH.
WE HAVE THE STATE.
>> GOOD MORNING, MATE PLEASE
THE COURT, DANIEL IN MAN,
ASSISTANT ATTORNEY GENERAL ON
BEHALF OF THE RESPONDENT AND WE
ARE ASKING THE COURT TO AFFIRM
THE DECISION OF THE --
>> DOES THE STATE REALLY HAVE
AN INTEREST IN WANTING TO HAVE
DEFENDANTS WHO REALLY HAVE A
LEGITIMATE GRIPE, WHICH IS\\$$
ISPDRIVING WITHOUT A LICENSE
AND GETS SEXUAL PREDATOR STATUS,
TO HAVE TO FILE A CIVIL CLAIM
OR WHATEVER?
IN OTHER WORDS, SENT BETTER TO
FASHION SOMETHING THAT FITS
WITHIN THE CRIMINAL CONTEXT
WHERE MOEZ OF THESE SITUATIONS
-- MOST OF THESE SITUATIONS ARE
IMPOSED THROUGH THIS CRIMINAL
COURT, TO THE FUTURE?
I MEAN, IS THE STATE POSITION
REALLY TO TAKE KING OUT AND
JUST TO SAY FILE THIS AS A
CIVIL DIVISION COMPLAINT FOR
DECLARATORY RELIEF.
>> CERTAINLY THAT WOULD BE
WITHIN THE RULE MAKING
AUTHORITY OF THIS COURT.
CERTAINLY 300A IS NOT THE
CORRECT REMEDY.
>> WOULDN'T IT BE THE CORRECT
REMEDY, THOUGH, FOR SOME OF THE
-- AND AGAIN, I THINK EACH OF
THE COURTS, WHEN THEY ARE
TRYING TO FATHOM A REMEDY THEY
LOOK AT WHAT THE WRONG IS AND
AGAIN THE CLASSIC WOULD BE I
MEAN, IT IS A PRETTY
SIGNIFICANT DESIGNATION, SEXUAL
PREDATOR DESIGNATION, YOU WOULD
AGREE WITH THAT.
>> SIGNIFICANT BURDEN.
>> CLEARLY NOBODY IN THE WORLD
COULD ARGUE THAT IT WASN'T A
QUALIFYING OFFENSE, DOESN'T THE
-- OUR SYSTEM OF JUSTICE HAVE
AN INTEREST IN THAT NARROW,
VERY, VERY NARROW
CLASSIFICATION OF CASES, THAT
THAT SHOULD BE SOMETHING THAT
COULD BE CHALLENGED OR DOES THE
STATE SAY, NO, IF THE
DEFENDANT, YOU KNOW, MISSES THE
TWO YEARS, THAT THEY ARE OUT?
>> WELL, RIGHT NOW, IT WOULD BE
OUR POSITION THAT
MR. SAINTELIEN DOES HAVE
ADEQUATE REMEDIES BY WAY OF
DIRECT APPEAL.
I WOULD MENTION THAT --
>> LET'S GO OVER THE DIRECT
APPEAL.
DO YOU AGREE THAT HE COULD HAVE
APPEALED THAT PART OF WHAT HE
IS NOW COMPLAINING OF IN THE
CRIMINAL APPEAL?
CAN CRIMINAL DEFENDANTS AS PART
OF THEIR CRIMINAL APPEAL,
HAVING AN ASSISTANT PUBLIC
DEFENDER REPRESENTING THEM
APPEAL SEXUAL PREDATOR
DESIGNATION?
>> YES, JUSTICE PARIENTE UNDER
9.140B 1D CAN FILE AN APPEAL
AND APPEAL THE ORDER OF THE
TRIAL COURT.
>> BUT IS IT PART OF SOMETHING
THE PUBLIC DEFENDER CAN
REPRESENT THEM BECAUSE IT IS
STILL PART OF THE CRIMINAL
SENTENCE?
INTO AND MAYBE THAT WOULD MAKE
A DIFFERENCE WHETHER IT
HAPPENED AT SENTENCING OR AFTER
SENTENCING AS IT HAPPENED IN
THAT CASE.
I'M NOT TOO SURE OF THAT
DISTINCTION.
CERTAINLY THE CRIMINAL
DEFENDANT UNDER WHATEVER
REPRESENTATION DOES HAVE A
RIGHT TO APPEAL THAT.
>> SO IT IS PART OF THE
CRIMINAL --
>> THE PROBLEM WE HAVE,
OBVIOUSLY, IS THE -- ALL OF
THESE CASES OUT THERE, THAT SAY
THAT THE DESIGNATION IS NOT
PART OF THE SENTENCE OR
PUNISHMENT.
>> EXACTLY.
>> AND SO IF -- EITHER WE HAVE
TO DO SOMETHING ABOUT THAT
LANGUAGE, OR WILL HAVE TO CRAFT
A WAY TO DEAL WITH IT.
ARE WE NOT.
>> JUSTICE WELLS I'M NOT SURE
IF IT REALLY HAS BEEN SHOWN TO
BE A PROBLEM.
DIRECT APPEAL, THAT WOULD BE
THE TIME FOR THE CRIMINAL
DEFENDANT TO RAISE THIS, FOR
WHATEVER REASON MR. SAINTELIEN
DIDN'T DO THAT, THAT IS WHERE
TRIAL ERROR IS REVIEWED
INDIRECT APPEAL.
>> BUT I'M ASKING IF IT'S NOT
PART OF THE CRIMINAL SENTENCE,
THEN AND MAYBE IF THE STATE
DOESN'T OBJECT TO IT, WHY IS IT
GOING TO BE RAISED PER THE
CRIMINAL APPEAL BECAUSE WE
RECOGNIZE IT IS PART AND PARCEL
OF THAT BUNDLE OF BURDENS THAT
ARE -- OCCUR AT LEAST AT THE
TIME OF SENTENCE AND THE STATE
IS OBJECTING -- ONE MORE ISSUE
AND I THOUGHT ONE OF THE 2nd
DISTRICT CASES IT SAID THAT THE
LAWYER SAID AN ANDREWS CASE AN
COULDN'T RAISE IT AND WE DO
NEED TO CLARIFY THIS.
IT'S NOT -- U IT'S NOT A
PROBLEM.
LOOKS LIKE A PROBLEM IF YOU
LOOK INTO JUDGE --
>> AND WITH ALL DUE RESPECT
UNDER 9.140B 1D, A DEFENDANT
MAY APPEAL ORDERS ENTERED AFTER
FINAL JUDGMENT AND SO I THINK
IT IS VERY CLEAR MR. SAINTELIEN
HAD A RIGHT FOR DIRECT APPEAL
WITHIN 30 DAYS AFTER ENTRY OF
THE ORDER DECLARING HIM A
SEXUAL PREDATOR FOR WHATEVER
REASON HE DIDN'T EXERCISE HIS
RIGHT TO DIRECT APPEAL.
UNDER EXTRAORDINARY
CIRCUMSTANCES, PERHAPS HE ALSO
HAS A RIGHT TO DELAY APPEAL AND
-- A LITTLE BITED APPEAL AND HE
DID NOT, AND AS FAR AS THE
CIVIL RIM MAIDS, I DON'T
BELIEVE THAT THOSE ARE
INADEQUATE, I DON'T BELIEVE IT
IS SHOWN THAT IS INADEQUATE --
I WOULD CITE RULE 1.540,
RELEASE FROM JUDGMENT.
>> WHICH IS INCONGRUOUS TO SAY
SOMEBODY HAS TO EXERCISE CIVIL
REMEDIES WHEN THESE ORDERS ARE
GENERAL ENTERED AS PART OF THE
CRIMINAL CASE WITH THE CRIMINAL
CASE NUMBER.
IF IT IS DONE IN THAT CONTEXT,
THEN IT MAY BE A SEPARATE
PROBLEM WITH ORDERS ISSUED IN
THE CIVIL COMMITMENT CONTEXT
BUT IF IN A CRIMINAL CONTEXT
WHY DID WE FORCE THE DEFENDANTS
TO FILE A CIVIL ACTION, DO WE
DO THAT IN ANY OTHER AREA OF
CRIMINAL LAW?
EVEN POSTCONVICTION HABEAS
CASES ARE ALL DONE IN THE
CRIMINAL CONTEXT THOUGH WE SAID
THEY ARE NOT ACTUALLY CRIMINAL,
THEY ARE QUASI-CRIMINAL, WHY
ISN'T THIS A QUASI-CRIMINAL
TYPE OF PROCEEDING.
>> BECAUSE IT'S NOT A SENTENCE
AND THAT IS WHAT THE
DISTINCTION IS BETWEEN A
SENTENCE AND COLLATERAL
CONSEQUENCE.
>> I UNDERSTAND IT IS NOT A
SENTENCE BUT IT ISN'T A CIVIL
CASE, EITHER, DONE IN THE
CONTEXT OF A CRIMINAL CASE.
>> FINDING MADE BY THE CRIMINAL
COURT JUDGE.
>> IN THAT VEIN, EVEN IF THE
DEPARTMENT IS THE ONE AND SAYS,
LOOK THIS PERSON QUALIFIES AS
THE SEXUAL PREDATOR BECAUSE OF
THE OUT OF STATE CONVICTION,
YOU HAVE TO GO TO THE CRIMINAL
COURT, DON'T YOU, IN ORDER TO
GET THIS PERSON DESIGNATED
THAT'S SEXUAL PREDATOR.
>> YES, JUSTICE.
>> AND SO, AND IT IS WHY, IF IT
IS THIS CRIMINAL COURT THAT IS
MAKING THE DECISION THAT THIS
PERSON IS A SEXUAL PREDATOR,
WHY WOULD YOU SAY, OKAY THE
CRIMINAL COURT HAS DONE THIS,
BUT YOU IN ORDER TO HAVE A
CRIMINAL REMEDY HAVE TO GO TO
THE CIVIL COURT.
>> BUT IN THAT CASE YOU'D HAVE
A REMEDY OF DIRECT APPEAL FROM
AN ORDER OF A CRIMINAL COURT
AND HE CERTAINLY WOULD HAVE
THAT REMEDY AND SO --
>> YOU GET BACK TO JUSTICE
PARIENTE'S QUESTION IF YOU HAVE
A RIGHT TO A DIRECT APPEAL AND
HAVE A PUBLIC DEFENDER
REPRESENT YOU AND ALL OF THAT,
WHY ISN'T ALL OF THIS REALLY IN
THE NATURE OF A CRIMINAL
PROCEEDING.
>> I DID NOT MAKE THE
CONCESSION THE PUBLIC DEFENDER
WOULD HAVE THE RIGHT TO
REPRESENT THE DEFENDANT AND I
WAS SAYING IF IT HAPPENED WITH
THE SENTENCING IT WOULD BE AN
ISSUE THE PUBLIC DEFENDER --
>> WHO WOULD REPRESENT THE
DEFENDANT, IF THE STATE
ATTORNEY GOES BEFORE THE COURT
AND ASKS THE COURT TO MAKE SOME
-- TO DESIGNATE SOMEONE AS A
SEXUAL PREDATOR, WHO WOULD IN
FACT REPRESENT THE DEFENDANT?
>> HE WOULD PROCEED PRO SE IF
HE IS AN OUT OF STATE
DEFENDANT, THE SCENARIO YOU
MENTIONED, JUSTICE QUINCE, IF
HE CAME FROM OUT OF STATE AND
WAS A SEXUAL PREDATOR IN
ANOTHER STATED, ALASKA AND FIVE
YEARS LATER CAME IN TO FLORIDA
AND WAS DECLARED A SEXUAL
PREDATOR BY A FLORIDA COURT --
>> CRIMINAL COURT.
>> YES.
BEFORE A CRIMINAL COURT, HE WAS
TAKEN -- AND HE WOULD NOT.
>> HAVE THE RIGHT TO HAVE A
PUBLIC DEFENDER APPOINTED TO
REPRESENT HIM.
>> NO, THE SENTENCE IS NOT
BEING IMPOSED.
THAT IS -- THERE IS A SENTENCE
AND COLLATERAL CONSEQUENCE AND
AGAIN THIS IS JUST A COLLATERAL
CONSEQUENCE AND THE SENTENCE
WAS IMPOSED BY A FLORIDA COURT
AND --
>> AND IN THE OVERWHELMING
WOULD YOU BE OF CASES, THESE
ARE BEING IMPOSED NOW AS PART
OF THE SENTENCING PROCESS.
IS THAT CORRECT.
>> YES.
AND THAT IS THE INTENTION OF
THE STATUTE.
>> I THOUGHT AND YOU CAN
CORRECT ME, ALTHOUGH WE SAID
SEXUAL PREDATOR DESIGNATION WAS
NOT A DIRECT CONSEQUENCE, WE
DID -- I THOUGHT WE REFERRED
THIS TO THE RULES COMMITTEE,
FOR A REQUEST THAT THIS BE PART
OF THE PLEA COLLOQUY.
DO YOU KNOW, AM I INCORRECT
ABOUT THAT OR DO YOU KNOW THE
STATUS OF ANY SUCH REFERRAL?
I MAY BE CONFUSING IT WITH
SOMETHING ELSE.
>> NO, THERE WAS SOME LANGUAGE
AND I BELIEVE IT WAS THE KING
DECISION, THAT THOFT SECOND
DISTRICT AND GOING ON MEMORY
NOW, THEY REFERRED IT TO A
RULES COMMITTEE, AND NOTHING
CAME OF THAT AND I DON'T RECALL
THIS COURT MAKING SUCH A
REFERENCE.
>> NOT ON THIS PARTICULAR ISSUE,
ON THE ISSUE THAT WHETHER THE
DEFENDANTS IN THE FUTURE WOULD
BE NOTIFIED AT THE TIME OF THE
PLEA COLLOQUY, OF SEXUAL
PREDATOR CONSEQUENCES.
>> I DON'T RECALL, JUSTICE --
>> ALL RIGHT.
NOW, AS FAR AS -- THE ISSUE
SEEMS TO BE THIS IS A SOLUTION
THAT IS -- NEEDS A SOLUTION
THAT IS WORKABLE AND MAY NEED
ITS OWN RULES AND WHAT CONCERNS
ME IS ALMOST EVERY TIME WE
REFER SOMETHING TO THE RULES OF
CRIMINAL PROCEDURE COMMITTEE WE
GET BACK THAT THEY CAN'T COME
UP WITH SOMETHING AND THAT IS
APPARENTLY -- THEY CONSIDERED
IT AND COULDN'T COME UP WITH A
WORKABLE RULE.
NOW, TO ME, THIS IS SOMETHING
THAT IT SEEMS THE STATE AND THE
PUBLIC DEFENDERS CAN SIT DOWN
WITH AND HELP THE COURT OUT,
INCOMING UP WITH A WORKABLE
RULE.
THAT IS FAIR TO A SITUATION
WHERE I CAN'T BELIEVE THE STATE
WOULD SAY SOMEBODY TEN YEARS
LATER CAN FIND THEY SHOULD
NEVER HAVE BEEN DESIGNATED AS A
SEXUAL PREDATOR AND WE ARE
GOING SAY WE NEED THEM TO GO
FILE A CIVIL ACTION AND, YOU
KNOW, GO BEFORE A CIVIL COURT.
SO, DO YOU HAVE ANY REASON TO
BELIEVE THAT A WORKABLE RULE
CANNOT BE DEVELOPED IN -- FOR
THIS SITUATION?
>> WELL, NO, IT WOULD BE BEYOND
MY SCOPE TO REPRESENT THAT AS
OUR POSITION TODAY AND IT IS
NOT OUR POSITION TODAY THAT
THERE ARE SUFFICIENT REMEDIES
AND AGAIN, I WOULD COME BACK TO
THE RIGHT TO DIRECT THE --
DIRECT APPEAL.
I MEAN, FIT WAS TRULY SOMETHING
THAT THE COURT DID THAT WAS
ILLEGAL AND MR. SAINTELIEN OR
ANY SIMILARLY SITUATED
DEFENDANT WAS BEING DECLARED A
SEXUAL PREDATOR FOR THE
INCORRECT OFFENSES AND DIDN'T
HAVE A EFFICIENT -- WASN'T A
REQUISITE OFFENSE WHY COULD
THAT NOT BE RAISED ON THE
DIRECT APPEAL AND CLEARLY, YOU
HAVE -- YOU DON'T --
>> YOU AGREE --
>> HE PLED GUILTY, GENERALLY
YOU DON'T HAVE AN APPEAL RIGHT
IN A GUILTY PLEA SITUATION.
SO HE HAS HAD -- WOULD HE HAVE
HAD THE RIGHT TO FILE IT IF IT
HAD BEEN DONE AT THE SAME
TOMORROW THAT THE GUILTY PLEA
WAS ENTERED.
>> AND WHO WOULD HAVE
REPRESENTED HIM?
>> IF HE WAS OBJECTING TO IT --
IF HE OBJECTED TO IT AND
PRESERVED THAT OBJECTION IT
COULD BE BROUGHT UP AS ERROR.
I THINK SITUATIONS ARE ALL
DIFFERENT, HE WAS REPRESENTED
BY THE PUBLIC DEVELOPEDDER AT
THE TIME, PERHAPS THE PUBLIC
DEFENDER WOULD REPRESENT HIM ON
APPEAL.
I MEAN, THAT IS A POSSIBLE
SCENARIO.
I THINK MR. SAINTELIEN'S CASE
THAT IS NOT WHAT HAPPENED, THE
PLEA WENT -- STILL DON'T HAVE
ANY PROBLEM WITH THE SENTENCE,
HE'S NOT EVEN ATTACKING THE
SENTENCE.
HE'S NOT SAYING IT'S AN ILLEGAL
SENTENCE, HE IS ATTACKING THE
SEXUAL PREDATOR DESIGNATION.
>> THIS IS THE ILLEGAL SENTENCE
BECAUSE IT WAS NOT A PART OF
WHAT HE HAD BARGAINED FOR.
WHEN HE ENTERED HIS GUILTY
PLEA.
>> AND HE HAS NO PROBLEM WITH
THE DOC PART OF THE SENTENCE,
PROBATION PART OF THE SENTENCE
AND THE PROBLEM IS LIMITED TO
THE SEXUAL PREDATOR DESIGNATION
OF COURSE.
>> AND IN THIS CASE THE JUDGE
IMPOSED THE DEZ NATION AFTER
THE SENTENCE, AFTER THE PLEA AT
SOME --
>> SEVERAL MONTHS AFTER.
>> AND YOU AGREE I THINK
EARLIER YOU AGREED THAT THE
DEFENDANT COULD HAVE APPEALED
THAT DESIGNATION UNDER 9.140
B1D AS AN ORDER ENTERED AFTER
JUDGMENT.
>> YES.
THAT IS CLEAR.
>> I BELIEVE IT'S THE KING CASE,
THE COURT DECIDED MR. KING WAS
DESIGNATED SEXUAL PREDATOR
UNDER CIRCUMSTANCES WHERE THE
LAW DOES NOT PERMIT THE
DESIGNATION BUT NEVERTHELESS,
FILED A DIRECT APPEAL, HIS
ATTORNEY FIND AN ANDREWS BRIEF
AND POINTED OUT THE DESIGNATION
AS A SEXUAL PREDATOR WAS
IMPROPER AND HIS LAWYER
CONCLUDED THE ISSUE COULDN'T BE
RAISED ON DIRECT APPEAL AND
THIS IS WHERE AGAIN I THINK WE
GET TRULY INTO AN ALICE IN
WONDERLAND TYPE OF SITUATION.
I MEAN, I'M NOT ASKING YOU
BECAUSE I'M SURE YOU --
>> YES.
>> LAWYER IN THE INITIAL KING
CASE BUT THIS IS WHAT I THINK
LED THE 2nd DISTRICT TO BE
FRUSTRATED.
>> PRECISELY AND THREW UP THEIR
HANDS I THINK BASED ON THIS,
WITH THE PROCEDURAL HISTORY
THAT YOU WERE RELATING, THAT IS
EXACTLY --
>> YOU WOULD AGREE MR. KING
WHEN HE FILED HIS DIRECT APPEAL,
HIS ATTORNEY COULD HAVE INSTEAD
OF JUST FILING THE ANDERS BRIEF
AND POINTING IT OUT OR IF THE
2nd DISTRICT LOOKED AT THAT AND
SAID WAIT THAT IS A MERITORIOUS
ISSUE THEY COULD HAVE --
>> RAISED -- THE ATTORNEY
SHOULD HAVE CHALLENGED IT AND
PERHAPS WOULDN'T HAVE GOTTEN A
KING DECISION, WORDED LIKE
THAT.
>> COULD HAVE FILED AS
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM -- I'M JUST
KIDDING!
>> WELL, SOME CLAIMS OF
ILLEGALITY DEALING WITH THE
SEXUAL PREDATOR DESIGNATION CAN
BE THE SUBJECT OF 3.800A
PROCEEDINGS, WHY SHOULDN'T ALL
CLAIMS, IF IT IS A CLAIM OF
ILLEGALITY BE TREATED UNDER
HERE AND THEN DEALT WITH ON THE
MERITS, THAT IS, I ASSUME THAT
THE STATE WOULD NOT ARGUE THAT
IF THERE WAS A SEXUAL PREDATOR
DESIGNATION AND THEN YOU JUST
LOOKED AT THE OFFENSE, AT THE
-- THAT PERSON WAS CONVICTED OF,
RECKLESS DRIVING, AND FOUND OUT
THEN JUST SAID, WELL, THAT HAD
TO BE A MISTAKE THEN AND THAT
IS CLEARLY ILLEGAL, TO DO THAT,
THAT -- WHY -- WOULD THAT BE
TREATABLE UNDER 3.800A?
THERE IT IS ON THE FACE OF THE
RECORD, HERE'S AN APPELLATE
OPINION, FROM THE FLORIDA
SUPREME COURT THAT SAYS YOU
CAN'T IMPOSE SEXUAL PREDATOR
DESIGNATION ON A RECKLESS
DRIVING CONVICTION.
AND SO, WOULD THAT BE TREATABLE
UNDER 3.800A.
>> IT MIGHT BE A REGRETTABLE
SITUATION.
I DON'T BELIEVE THAT THAT WOULD
BE TREATABLE UNDER 400A AND
THAT IS NOT THE CASE WE HAVE
NEAR.
>> WHY NOT?
IT MEETS ALL OF THE -- IN OTHER
WORDS WE HAVE GIVEN OUT A
FORMULA ILL LEE GALTED AN UNDER
OUR LAW, NO JUDGE UNDER ANY
CIRCUMSTANCES COULD IMPOSE THE
SEXUAL PREDATOR DESIGNATION ON
A CONVICTION FOR RECKLESS
DRIVING.
>> THAT IS TRUE.
SO WHY WOULDN'T THAT QUALITYIE.
>> IT'S NOT AN ILLEGAL SENTENCE,
P00A IS FOR ILLEGAL SENTENCE.
>> IT COMES BACK TO THE ISSUE
OF, YOU KNOW, WHAT WE HAVE IS
THAT THE CRIMINAL COURT JUDGE
IN THIS CRIMINAL CASE ALL RIGHT
HAS DONE THAT AND ALL OF OUR
POLICY HAS BEEN WHEN YOU WANT
TO COME BACK ON POSTCONVICTION
WE WANT TO CHANNEL YOU BACK TO
THAT SAME VENUE AND THAT SAME
FORCE WE DON'T WANT ONE JUDGE
AND ANOTHER DIVISION OF THE
COURT SAYING TO THE JUDGE OVER
HERE, IN THE CRIMINAL DIVISION,
YOU KNOW, YOU DID SOMETHING
WRONG OR WHATEVER, SO ALL OF
OUR POLICY HAS BEEN TO CHANNEL
THESE THINGS BACK, HOPEFULLY
LOGICALLY, OKAY?
AND WHY WOULDN'T THAN
APPROPRIATE TO DO UNDER THE
HYPOTHETICAL I GAVE YOU, YOU
KNOW, NOT TALKING ABOUT THE
CASE YET.
>> BECAUSE I THINK THAT A
DEFENDANT, CRIMINAL DEFENDANT
COULD STILL HAVE A REMEDY IN
FRONT OF A COURT WITH CIVIL
RELIEF.
>> I'M NOT TALKING ABOUT THAT,
I'M TALK ABOUT WHY WOULDN'T IT
BE APPROPRIATE IF ALL YOU NEED
TO DO IS LOOK AND KNOW IT FITS
OUR DEFINITION, OF THE KIND OF
CASE THAT SHOP PROPER FOR
3.800A RELIEF AND GET RID OF
THE SEXUAL PREDATOR DESIGNATION
SINCE RECKLESS DRIVING IS NOT A
QUALIFYING OFFENSE.
>> IN THOSE VERY RARE CASES, I
DON'T THINK IT FITS WITHIN THE
3800A IF THE COURT THINKS OF
FASHIONING A RULE TO ADDRESS
THOSE LIMITED CASES.
>> THE STATE'S POSITION THEN IS
THERE IS NO ILLEGALITY
INVOLVING THE SEXUAL PREDATOR
DESIGNATION THAT WHATEVER --
WOULD EVER QUALIFY FOR 3.800A
RELIEF.
>> AND YOU ADOPT THE POSITION
AND MYERS, THE MOST RECENT CASE
--
BOYER, AND MR. BOYER WAS
ALLEGING HE DIDN'T HAVE THE
PREDICATE OFFENSE AND THE FIRST
DCA HELD POSTCONVICTION RELIEF
IS NOT AVAILABLE AND HAD TO
PURSUE INJUNCTIVE OR
DECLARATORY RELIEF IN THE CIVIL
ACTION.
>> YES.
WHICH HAS NOT BEEN SHOWN TO BE
IN SUFFICIENT IN MR. BOYER'S
CASE.
AND ANOTHER PROBLEM IS THE
3800A, YOU COULD BE BROUGHT AT
ANY TIME, CLEARLY, NOT THE TYPE
OF CHALLENGE WE'RE HAVING THIS.
I THINK, YOU KNOW, WE HAVE
LIMITATIONS ON 3850s, IF THIS
COURT IS CONSIDERING A RULE
WITHIN THE CRIMINAL RULES TO
ADDRESS THE TYPE OF SITUATION
--
>> LET ME UNDERSTAND YOUR
ANSWER TO JUSTICE AM STEAD'S
QUESTION, IS, THAT THE STATE'S
POSITION IS NOT THAT THE
DESIGNATION AS FAR AS THE
RECKLESS DRIVING IS NOT ILLEGAL,
IT'S NOT A SENTENCE, IS THAT
THE POSITION OF THE STATE?
>> IT IS NOT A SNS AND NOT AN
ILLEGAL SENTENCE AN MIGHT HAVE
BEEN TRIAL COURT ERROR.
I MEAN, I WOULD CONCEDE THAT
THAT WOULD BE TRIAL COURT ERROR
BUT ONCE WE HAVE TRIAL COURT
ERROR WHAT IS THE REMEDY.
>> YOU TAKE THE POSITION THAT
JUDGE GRIFFIN WROTE IN
NICHOLSON THAT IT WAS AN ERROR
IN SENTENCING AS OPPOSED TO AN
ILLEGAL SENTENCE?
>> IT WOULD BE AN ERROR EITHER
IN THE SENTENCING, PROCEEDING
AT THE TIME OF SENTENCING OR,
AGAIN COULD BE DONE AFTER
SENTENCING, WELL AFTER
SENTENCING AS WELL, SO, I WOULD
CONCEDE UNDER THAT SCENARIO IT
CERTAINLY IS TRIAL COURT ERROR
BECAUSE THE PERSON WAS NOT
SUPPOSED TO BE DESIGNATED A
SEXUAL PREDATOR AND HE WAS AND
CERTAINLY THAT IS --
>> -- INSTEAD OF DESIGNATING
HIM A SEXUAL PREDATOR, WHAT IF
HE SAID YOU ARE HERE BY ORDERED
TO PUT A BUMPER STICKER ON THE
BACK OF YOUR CAR THAT SAYS, I
AM A SEXUAL PREDATOR.
OKAY.
COULD HE CHALLENGE THAT.
>> HE -- ANSWER THIS QUESTION,
YOU HAVE EXHAUSTED YOUR TIME,
BUT JUST ANSWER THAT QUESTION,
ANSWER THIS ONE QUESTION,
PRECISELY.
>> JUSTICE AM STEAD IF IT IS
NOT A SENTENCE I DO NOT BELIEVE
THE PERSON AS A REMEDY UNDER
3.800 AND IN THAT SITUATION OR
ANY SITUATION WHERE THE ERROR
IS SO EGREGIOUS, NOT MR. IS IT
THE LEAN'S CASE, BECAUSE THERE
IS NO ERROR THERE, THEN THE
TRIAL COURT DID SOMETHING THAT
FAR BEYOND THE RULES, WHY WOULD
THE PERSON NOT TAKE A DIRECT
APPEAL WITHIN 30 DAYS AS HE CAN
UNDER THE RULES AND THEN NOT
PERHAPS SEEK A A LITTLE BITED
APPEAL THROUGH SOME OTHER THING
THAT WAS DONE AFTER, AND THAT
IS HIS REMEDY, THE -- TO SEEK A
-- AN APPEAL.
AND THAT WOULD BE MY ANSWER,
WHY WOULD THAT PERSON NOT SEEK
AN APPEAL IF SOMETHING WAS DONE
THAT, GREEJS BY THE TRIAL
COURT.
>> THANK YOU VERY MUCH I'M
GOING TO GIVE YOU ANOTHER
MINUTE TO GIVE YOUR CONCLUDING
THAUTSD, YOU HAVE EXHAUSTED ALL
YOUR TIME BUT OR QUESTIONING
USED UP MOST OF YOUR TIME, GIVE
US YOUR CONCISE --
>> THANK YOU.
>> FINAL THOUGHTS.
>> I WOULD LIKE TO RESPOND TO
THE STATE'S ARGUMENT THAT IF A
DIRECT APPEAL REMEDY IS
APPROPRIATE.
THE PROBLEM IS THERE IS NO
REQUIREMENT THAT A DEFENDANT BE
PRESENT FOR A HEARING TO IMPOSE
A SEXUAL PREDATOR DESIGNATION
THAT OCCURS SUBSEQUENT TO THE
SENTENCING AND NO REQUIREMENT
UNDER THE STATUTE OR THE RULES
THAT A DEFENDANT BE GIVEN A
COPY OF AN ORDER IMPOSING HIM
AS A SEXUAL PREDATOR AND THERE
IS NO REQUIREMENT THAT A
DEFENDANT WHO IS NOT
NECESSARILY EVEN THERE, BE
ADVISED THAT HE HAS A RIGHT OF
DIRECT APPEAL.
SO THAT MAY BE ONE AVAILABLE
REMEDY TO SOME PEOPLE WHO
HAPPEN TO BE THERE AND KNOW
WHAT IS GOING ON BUT CANNOT
FAIRLY BE THE ONLY REMEDY FOR
DEFENDANTS IN THIS SITUATION.
>> THANK YOU.
>> THE COURT WILL TAKE THE CASE
UNDER ADVISEMENT.
THANK YOU VERY MUCH FOR YOUR
TIME.