State of Florida v. Brian K. McKenzie

Supreme Court of Florida
____________

No. SC19-912
____________

STATE OF FLORIDA,
Petitioner,

vs.

BRIAN K. MCKENZIE,
Respondent.

September 23, 2021

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

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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

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[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,

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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

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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

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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.)

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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 predator designation on an offender who qualifies under

section 775.21, when the designation was not imposed at

sentencing and the offender’s sentence has been completed. This

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question of statutory interpretation is subject to de novo review.

See Bay Cnty. v. Town of Cedar Grove, 992 So. 2d 164, 167 (Fla.

2008).

As we have stated, “In interpreting . . . statute[s], we follow the

‘supremacy-of-text principle’—namely, the principle that ‘[t]he

words of a governing text are of paramount concern, and what they

convey, in their context, is what the text means.’ ” Ham v. Portfolio

Recovery Associates, LLC, 308 So. 3d 942, 946 (Fla. 2020) (quoting

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 56 (2012)). “[E]very word employed in [a legal text] is

to be expounded in its plain, obvious, and common sense, unless

the context furnishes some ground to control, qualify, or enlarge it.”

Joseph Story, Commentaries on the Constitution of the United States

157-58 (1833), quoted in Scalia & Garner, Reading Law at 69.

“Context always matters” because “sound interpretation requires

paying attention to the whole law, not homing in on isolated words

or even isolated sections.” King v. Burwell, 576 U.S. 473, 500-01

(2015) (Scalia, J., dissenting). Context is important as “a tool for

understanding the terms of the law, not an excuse for rewriting

them.” Id. at 501.

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In addressing section 775.21, we first focus our attention on

section 775.21(4), which sets forth who can be designated as a

sexual predator. Section 775.21(4)(a) lists enumerated offenses, as

well as “violation[s] of . . . similar law[s]” of other jurisdictions that

warrant the sexual predator designation. Additionally, section

775.21(4)(d) states that “[a]n offender who has been determined to

be a sexually violent predator pursuant to a civil commitment

proceeding under chapter 394” is a sexual predator. In both cases,

i.e., offenders who qualify as sexual predators from either their

criminal offense or civil commitment, the offender “shall be

designated as a ‘sexual predator.’ ” § 775.21(4)(a), (d), Fla. Stat.

(emphasis added). The use of the word “shall” makes clear that the

Legislature imposed a substantive duty on the court to give the

sexual predator designation for these offenders.

Section 775.21(5)(a) then places procedural requirements on

the court as a means of carrying out the substantive purpose of the

Legislature to impose the sexual predator designation on qualifying

offenders. First, section 775.21(5)(a)1. pertains to those offenders

who qualify as sexual predators as a result of civil commitment

under chapter 394. Next, section 775.21(5)(a)2. refers to offenders

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who are before the court for sentencing for the enumerated offenses

under section 775.21(4)(a). Stated in full, section 775.21(5)(a)2.

provides:

An offender who meets the sexual predator criteria
described in paragraph (4)(a) who is before the court for
sentencing for a current offense committed on or after
October 1, 1993, is a sexual predator, and the sentencing
court must make a written finding at the time of
sentencing that the offender is a sexual predator, and the
clerk of the court shall transmit a copy of the order
containing the written finding to the department within
48 hours after the entry of the order . . . .

(Emphasis added.) Lastly, section 775.21(5)(a)3. pertains to

offenders who meet the sexual predator designation criteria based

on a civil commitment or criminal offense that occurred previously

in another jurisdiction and who now maintain permanent,

temporary, or transient residence in Florida. In each of the three

subsections of section 775.21(5)(a), for those offenders who qualify

as sexual predators, the court is obligated to impose the

designation and “make a written finding” of the offender’s sexual

predator status. § 775.21(5)(a)1.-3., Fla. Stat.

Section 775.21(5)(a)2. addresses offenders at sentencing but

does not directly address the category of offenders that are at issue

here: offenders who were statutorily mandated to be designated as

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sexual predators at sentencing but were not. But we cannot

reasonably read the procedural directions under section

775.21(5)(a)2. regarding the timing of the designation in a way that

defeats the Legislature’s substantive mandate to impose the sexual

predator designation.

Section 775.21(5)(a)2. is simply one procedural mechanism

designed to implement the Legislature’s substantive policy of

protecting the public from sexual predators. The Legislature made

clear:

The state has a compelling interest in protecting the
public from sexual predators and in protecting children
from predatory sexual activity, and there is sufficient
justification for requiring sexual predators to register and
for requiring community and public notification of the
presence of sexual predators.

. . . It is the purpose of the Legislature that, upon
the court’s written finding that an offender is a sexual
predator, in order to protect the public, it is necessary
that the sexual predator be registered with the
department and that members of the community and the
public be notified of the sexual predator’s presence.

§ 775.21(3)(c)-(d), Fla. Stat. Prohibiting the sexual predator

designation because of the sentencing court’s failure to act timely

under section 775.21(5)(a)2. would directly thwart the Legislature’s

stated purpose under section 775.21(3). And nothing in the

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statutory scheme can be reasonably understood to preclude

imposing the statutorily mandated designation when the sentencing

court has failed to follow the direction contained in section

775.21(5)(a)2. The statutory scheme provides no basis for

concluding that a fumble by the sentencing court should immunize

a sexual predator from the legally required designation and

registration.

Contrary to the Fifth District’s analysis in McKenzie, we do not

read section 775.21(5)(c) as limiting a court’s jurisdiction for

offenders under section 775.21(5)(a)2. Section 775.21(5)(c) states:

If the Department of Corrections, the department, 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 state
attorney shall bring the matter to the court’s attention in
order to establish that the offender meets the sexual
predator criteria. If the state attorney fails to establish
that an offender meets the sexual predator criteria and
the court does not make a written finding that an
offender is a sexual predator, the offender is not required
to register with the department as a sexual predator. The

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Department of Corrections, the department, or any other
law enforcement agency shall not administratively
designate an offender as a sexual predator without a
written finding from the court that the offender is a
sexual predator.

(Emphasis added.)

We agree with the Third District in Cuevas: Section

775.21(5)(c) simply sets forth certain notice requirements for

offenders under sections 775.21(5)(a)1. and 775.21(5)(a)3. For

these offenders, section 775.21(5)(c) simply places an obligation on

the department or another law enforcement agency to “notify” the

appropriate state attorney, who in turn must “bring the matter to

the court’s attention.” Section 775.21(5)(c) goes on to state that the

offender is not obligated to register with the department unless the

State brings the matter to the court’s attention and the court then

makes a written finding that the offender qualifies as a sexual

predator. But nothing in section 775.21(5)(c) places a restriction on

the court’s jurisdiction over those offenders who were required to be

designated as sexual predators at sentencing but were not. The

text contains no such express restriction and the implication of

such a restriction is unreasonable given the whole statutory

context. This provision of the statute is designed to help ensure

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that sexual predators do not escape designation as such. It is not

designed to require that a judicial fumble will guarantee that a

sexual predator will forever escape designation and the attendant

consequences.

We thus reject the view that the absence of a mechanism in

subparagraph (c) specifically addressing the type of error presented

by this case—a failure to impose the required designation at

sentencing—implies that the error is beyond subsequent remedy.

An interpretation should not be imposed on the statutory text by

implication when that interpretation contradicts the manifest

purpose of the text as well as an unequivocal requirement stated in

the text.

Lastly, we address the relationship between section 775.21

and the criminal offenses that can give rise to the sexual predator

designation. The imposition of sexual predator status under section

775.21 is related to the underlying criminal offense—but is not

itself a sentence or punishment. “The designation of a person as a

sexual predator is neither a sentence nor a punishment but simply

a status resulting from the conviction of certain crimes.”

§ 775.21(3)(d), Fla. Stat.; see also Kelly v. State, 795 So. 2d 135,

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138 (Fla. 5th DCA 2001) (“[T]he sexual predator designation is part

of a substantive statutory enactment designed and intended to

accomplish . . . policy objectives, [and] the courts have recognized

that the designation is neither a sentence nor a punishment.”).

Thus, arguments which contend that a court surrenders

jurisdiction over an offender because the offender’s sentence has

been completed are flawed. The Legislature merely used the

underlying criminal offense as a basis of classification for sexual

predators, separate and distinct from a sentence or punishment.

Section 775.21 is plainly applicable to offenders for which this

state never had jurisdiction over the original criminal offense. See

§ 775.21(4)(a), (5)(a)3., Fla. Stat. So it cannot be the case that the

jurisdiction of the court to impose the sexual predator designation

is tethered to the original court’s jurisdiction regarding imposition

of the underlying criminal sentence. Completion of the underlying

criminal sentence does not abrogate jurisdiction.

CONCLUSION

We conclude that a circuit court has jurisdiction to impose a

sexual predator designation on an offender who qualifies under

section 775.21, when the sentencing court did not impose the

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designation at sentencing and the offender’s sentence has been

completed. We therefore quash McKenzie and approve Cuevas.

It is so ordered.

CANADY, C.J., and MUÑIZ, COURIEL, and GROSSHANS, JJ.,
concur.
COURIEL, J., concurs with an opinion.
POLSTON, J., dissents with an opinion, in which LABARGA and
LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

COURIEL, J., concurring.

I agree with the majority’s conclusion and the reasoning of the

Third District in Cuevas v. State, 31 So. 3d 290 (Fla. 3d DCA 2010),

that section 775.21(5)(c) does not divest a trial court of jurisdiction

to designate a person as a sexual predator at any time after

conviction of an offense listed in section 775.21(4)(a). That is

because, for one thing, “[s]ection 775.21(5)(c) simply sets forth

certain notice requirements for offenders . . . [and] places an

obligation on the department or another law enforcement agency to

‘notify’ the appropriate state attorney, who in turn must ‘bring the

matter to the court’s attention.’ ” Majority op. at 14; see also

Cuevas, 31 So. 3d at 291-92. I do not see in the plain words of this

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provision, or in the part it plays in the structure of the Florida

Sexual Predators Act as a whole, a decision by the Legislature to

thwart the purpose of the statute expressly stated in section

775.21(3)(d). In that way, today’s decision applies the long-settled

rule that “[a] textually permissible interpretation that furthers

rather than obstructs the document’s purpose should be favored.”

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 63 (2012).

What is more, the statute does not take from the trial court

jurisdiction it would have otherwise had to entertain an effort by the

State to seek Brian K. McKenzie’s designation as a sexual predator.

That designation is, the statute says, “neither a sentence nor a

punishment but simply a status resulting from the conviction of

certain crimes.” § 775.21(3)(d), Fla. Stat. (2018). It is not, for

example, the imposition of a term of a sentence upon a defendant,

see Advisory Opinion to the Governor re Implementation of

Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070,

1081-82 (Fla. 2020), so much as it is the trial court’s command that

certain actions be taken by public officers to comply with the

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expressly stated purpose of the Florida Sexual Predators Act. 1

These actions are ministerial duties, neither requiring nor

permitting the exercise of discretion by the trial court, the

Department of Law Enforcement, or the Department of Corrections.

For this reason, the State might have sought a writ of

mandamus from the circuit court requiring the Department of

Corrections to designate McKenzie as a sexual predator. Art. V,

§ 5(b), Fla. Const.; see also Pleus v. Crist, 14 So. 3d 941, 945 (Fla.

2009) (To be entitled to mandamus relief, “the petitioner must have

a clear legal right to the requested relief, the respondent must have

an indisputable legal duty to perform the requested action, and the

petitioner must have no other adequate remedy available.” (quoting

Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000))); Philip J.

Padovano, Florida Civil Practice § 30:1 (2021 ed.) (“Mandamus is a

1. It stands to reason, therefore, that the statute affords
McKenzie no right to contest the designation once the factual
predicate for it has been established: it is not a sanction directed at
him. We have recently found the absence of such a requirement to
be meaningful where, as here, the statute commands as mandatory
a certain action by the court in the performance of its duties at
sentencing. Cf. State v. J.A.R., 318 So. 3d 1256 (Fla. 2021) (trial
court was not required to provide defendant notice and hearing
prior to imposing a statutorily required, mandatory fee of $100 at
sentencing).

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common law remedy to enforce an established legal right by

compelling a public officer or agency to perform a ministerial duty

required by law.”).

POLSTON, J., dissenting.

I dissent from the majority’s decision holding that a circuit

court has jurisdiction to belatedly 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 failed to impose the designation at sentencing, and

the offender’s sentence has been complete for over three years.

I agree with the reasoning set forth in Judge Shepherd’s

dissenting opinion in the Third District Court of Appeal’s decision in

Cuevas v. State, 31 So. 3d 290 (Fla. 3d DCA 2010), and would

conclude that a plain reading of section 775.21(5)(c) does not grant

a circuit court authority to designate a sexual predator once the

sentence has been completed. Accordingly, I would approve the

Fifth District Court of Appeal’s decision in McKenzie v. State, 272

So. 3d 808 (Fla. 5th DCA 2019), and disapprove the Third District’s

decision in Cuevas.

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I. BACKGROUND

The Fifth District in McKenzie set forth the following facts:

Brian K. McKenzie appeals an order designating
him as a sexual predator under section 775.21, Florida
Statutes (2018). The order was entered after McKenzie
had completed his sentence. We conclude that the trial
court lacked jurisdiction to enter the order and,
accordingly, reverse. In doing so, we certify conflict with
Cuevas v. State, 31 So. 3d 290 (Fla. 3d DCA 2010).
On October 28, 2009, McKenzie entered a nolo
contendere 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 (2009). Pursuant to a negotiated 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. The trial court further found that
McKenzie qualified as a sex offender. Neither party
appealed the judgment and sentence.
McKenzie served his jail time and successfully
completed his community control and probation. The
sentence was completed in April 2015, and McKenzie was
notified by the Department of Corrections that he was no
longer under supervision.
Three years later, the State filed a notice with the
trial court, requesting that McKenzie be designated a
sexual predator. After a hearing, and over McKenzie’s
objection, the trial court entered an order designating
McKenzie a sexual predator and ordering him to comply
with the registration requirements set forth in section
775.21, Florida Statutes (2018). At the time the trial
court entered its order, Cuevas was the only Florida
appellate court opinion directly addressing the issue of
whether a sexual predator designation order may be
entered after a defendant has completed his sentence.

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The trial court appropriately relied on Cuevas in entering
its order.

272 So. 3d at 808-09 (footnote omitted).

On appeal, the Fifth District explained that pursuant to the

text of section 775.21 and other caselaw interpreting the statute,

designating a sexual predator is a mandatory duty intended to take

place at sentencing but that a trial court still has jurisdiction to

designate a sexual predator while the sentence is being served. Id.

at 809. The Fifth District then discussed the established rule that a

trial court in a criminal proceeding loses subject matter jurisdiction

over an offender once the probationary sentence is finished. Id. at

810.

Turning to the facts of this case, the Fifth District concluded

that McKenzie was an offender who should have been, but was not,

designated at the time of sentencing under subparagraph (5)(a)2.

but that subsection (5)(c) only expressly mentions subparagraphs

(5)(a)1. and (5)(a)3. Id. at 810-11. Concluding that Judge

Shepherd’s dissent in Cuevas correctly interpreted the statute

based on its plain language, the Fifth District held that section

775.21(5)(c) did not grant the circuit court jurisdiction to belatedly

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designate McKenzie as a sexual predator and reversed. McKenzie,

272 So. 3d at 811. The Fifth District also certified conflict with

Cuevas, and this appeal followed. McKenzie, 272 So. 3d at 811.

II. ANALYSIS

The majority holds that section 775.21 confers jurisdiction on

a trial court to designate a sexual predator after he is sentenced

and completes his probation. I disagree because the plain language

of section 775.21 does not expressly grant a trial court this

authority.

A court’s determination of the meaning of a statute begins

with the language of the statute. See Lopez v. Hall, 233 So. 3d 451,

453 (Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla.

1984)). If that language is clear, the statute is given its plain

meaning, and the court does “not look behind the statute’s plain

language for legislative intent or resort to rules of statutory

construction.” City of Parker v. State, 992 So. 2d 171, 176 (Fla.

2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64

(Fla. 2005)).

The Florida Sexual Predator Act provides for the registration

and public notification of sexual predators. See § 775.21, Fla. Stat.

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(2018). Originally enacted in 1993 and amended in 1996, the Act

now sets forth a detailed process for designating sexual predators,

which requires a written finding and designation by a trial court.

See Therrien v. State, 914 So. 2d 942, 946 (Fla. 2005); see also ch.

96-388, § 61, Laws of Fla. The Act describes legislative findings

and purposes in subsection (3), the criteria for qualifying as a

sexual predator in subsection (4), and the process for designating

qualifying offenders in subsection (5). See § 775.21(3)-(5). A sexual

predator designation is neither a sentence nor a punishment. See

§ 775.21(3)(d) (“The designation of a person as a sexual predator is

neither a sentence nor a punishment but simply a status resulting

from the conviction of certain crimes.”). “Under the 1996

amendment, and continuing up to the present, the duty to register

[as a sexual predator] is triggered solely by the trial court’s finding

that the offender is a sexual predator.” Therrien, 914 So. 2d at 946.

And, under subsection (4)(c), an offender is not designated as a

sexual predator unless there has been a written finding by a court

that the offender meets the sexual predator criteria. § 775.21(4)(c).

An offender may qualify as a sexual predator in three ways.

First, and foremost for this case, an offender may qualify by being

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convicted of an enumerated current offense. § 775.21(4)(a).

Second, an offender may qualify by committing a comparable

offense in another jurisdiction. § 775.21(4)(a)1.a.-b. Third, “[a]n

offender who has been determined to be a sexually violent predator

pursuant to a civil commitment proceeding” automatically qualifies

as a sexual predator under the Act. § 775.21(4)(d).

Most pertinent to the question before this Court, section

775.21(5) details the process by which a qualifying offender may be

designated as a sexual predator:

(5) Sexual predator designation.--An offender is
designated as a sexual predator as follows:

(a) 1. An offender who meets the sexual predator
criteria described in paragraph (4)(d) is a sexual predator,
and the court shall make a written finding at the time
such offender is determined to be a sexually violent
predator under chapter 394 that such person meets the
criteria for designation as a sexual predator for purposes
of this section. The clerk shall transmit a copy of the
order containing the written finding to the department
within 48 hours after the entry of the order;

2. An offender who meets the sexual predator
criteria described in paragraph (4)(a) who is before the
court for sentencing for a current offense committed on
or after October 1, 1993, is a sexual predator, and the
sentencing court must make a written finding at the time
of sentencing that the offender is a sexual predator, and
the clerk of the court shall transmit a copy of the order

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containing the written finding to the department within
48 hours after the entry of the order; or

3. If the Department of Corrections, the department,
or any other law enforcement agency obtains information
which indicates that an offender who establishes or
maintains a permanent, temporary, or transient
residence in this state meets the sexual predator criteria
described in paragraph (4)(a) or paragraph (4)(d) because
the offender was civilly committed or committed a similar
violation in another jurisdiction on or after October 1,
1993, the Department of Corrections, the department, or
the law enforcement agency shall notify the state
attorney of the county where the offender establishes or
maintains a permanent, temporary, or transient
residence of the offender’s presence in the community.
The state attorney shall file a petition with the criminal
division of the circuit court for the purpose of holding a
hearing to determine if the offender’s criminal record or
record of civil commitment from another jurisdiction
meets the sexual predator criteria. If the court finds that
the offender meets the sexual predator criteria because
the offender has violated a similar law or similar laws in
another jurisdiction, the court shall make a written
finding that the offender is a sexual predator.

When the court makes a written finding that an offender
is a sexual predator, the court shall inform the sexual
predator of the registration and community and public
notification requirements described in this section.
Within 48 hours after the court designating an offender
as a sexual predator, the clerk of the circuit court shall
transmit a copy of the court’s written sexual predator
finding to the department. If the offender is sentenced to
a term of imprisonment or supervision, a copy of the
court’s written sexual predator finding must be
submitted to the Department of Corrections.
....

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(c) If the Department of Corrections, the
department, 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 state
attorney shall bring the matter to the court’s attention in
order to establish that the offender meets the sexual
predator criteria. If the state attorney fails to establish
that an offender meets the sexual predator criteria and
the court does not make a written finding that an
offender is a sexual predator, the offender is not required
to register with the department as a sexual predator. The
Department of Corrections, the department, or any other
law enforcement agency shall not administratively
designate an offender as a sexual predator without a
written finding from the court that the offender is a
sexual predator.

§ 775.21(5).

Subsection (5)(a) provides separate processes for offenders

who have been civilly committed, convicted of a current offense, or

convicted in another jurisdiction. See § 775.21(5)(a)1.-3.

Subparagraph (5)(a)2. is the operative subsection for an offender,

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like McKenzie, who could have been designated as a sexual

predator by the trial court at sentencing. 2

The plain language of subparagraph (5)(a)2. only grants a trial

court the authority to designate a sexual predator at the time of

sentencing. § 775.21(5)(a)2. (providing that an offender who has

been convicted of a qualifying offense in subsection (4)(a) “who is

before the court for sentencing for a current offense committed on

or after October 1, 1993, is a sexual predator” and must be

designated as such). Further, it mandates that the trial court

imposing the designation “must make a written finding at the time

of sentencing that the offender is a sexual predator.” Id. These

provisions expressly limit a trial court’s authority to designate a

sexual predator to the time when the offender is before the court for

sentencing, and thus a trial court does not have jurisdiction to

designate a sexual predator after he has completed his sentence

under this subparagraph.

2. Subparagraph (5)(a)1. applies to offenders who have been
civilly committed and (5)(a)3. applies to offenders convicted in an
outside jurisdiction, so neither applies in a case where an offender
was convicted of a qualifying offense in a Florida court.

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Section 775.21(5)(c) is a “recapture” provision that provides for

designation of a qualifying offender in the event a court did not

make a written finding as required in subsection (a). Specifically,

subsection (5)(c) provides that if a law enforcement agency obtains

information that an offender meets the criteria as a sexual predator

but was not designated at sentencing, the agency shall inform a

state attorney who must then bring the matter before a trial court

for a written determination. § 775.21(5)(c). By its plain language,

this provision applies to those offenders upon whom the trial court

was required to, but did not, impose the sexual predator

designation at sentencing. But the provision specifies that an

agency is required to notify the state attorney who prosecuted the

offense for offenders described in subparagraph (a)1. and

subparagraph (a)3., neither of which is applicable to this case.

Subsection (5)(c) fails to reference subsection (5)(a)2.—the

subsection applicable to McKenzie. See Cuevas, 31 So. 3d at 294

(Shepherd, J., dissenting) (“However, [section 775.21(5)(c)] . . . is

inapplicable on its face because subparagraph (a)1 pertains only to

offenders who have been civilly committed under the Jimmy Ryce

Act, § 394.910, Fla. Stat. (2000), and subparagraph (a)3 pertains to

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persons who have committed a similar violation in another

jurisdiction. By its terms, this subsection does not include

offenders described in section 775.21(a)2, the category in which

Cuevas falls.”). Accordingly, the plain language of section 775.21(5)

does not expressly grant a trial court this authority.

The majority attempts to circumvent the plain language of

section 775.21(5)(c) by reading something into section 775.21 that

is not there. The majority focuses on the Legislature’s use of the

language “shall” in section 775.21(4), see majority op. at 10, but

ignores the remaining language included in that directive that it

“shall” be designated under subsection (5), which still subjects the

designation to the processes and restrictions set forth in subsection

(5). Under subsection (5)(a)2., the designation occurs by a written

finding at the time of sentencing. The majority concludes that this

subsection does not apply to the category of offenders at issue in

this case, and “[t]he statutory scheme provides no basis for

concluding that a fumble by the sentencing court should immunize

a sexual predator from the legally required designation and

registration.” See majority op. at 12-13. However, the Legislature

expressly contemplated a “fumble” by the sentencing court and the

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parties when it included a recapture provision in subsection 5(c),

which, by its plain language, does not apply to this case. As urged

by the State, the majority concludes that subsection 5(c) simply

sets forth certain notice requirements. See majority op. at 14.

However, this Court has previously explained that subsection (5) is

a “second chance” provision “applicable to persons who could have

been but were not declared sexual predators at sentencing.” See

Therrien, 914 So. 2d at 947. And the plain language of subsection

(5)(c) and its express limitations simply do not allow the State to

impose McKenzie’s sexual predator designation three years after his

sentence was completed.

III. CONCLUSION

I would approve the Fifth District’s decision in McKenzie,

disapprove the Third District’s decision in Cuevas, and conclude

that a plain reading of section 775.21 does not grant a circuit court

authority to designate sexual predators once they have completed

their sentence.

I respectfully dissent.

LABARGA and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal

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Certified Direct Conflict of Decisions

Fifth District - Case No. 5D18-2206

(Orange County)

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

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