       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 9, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2916
                        Lower Tribunal No. 97-30157-K
                             ________________


                                Ernesto Vega,
                                      Appellant,

                                         vs.

                            The State of Florida,
                                      Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Mark H. Jones, Judge.

      Ana M. Davide, for appellant.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.


Before SUAREZ, C.J., and WELLS and SALTER, JJ.

      SALTER, J.
      Ernesto Vega appeals the summary denial of his motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. Mr. Vega’s four claims

seek relief from his obligation to register as a sexual offender under section

943.0435, Florida Statutes (1997)—a statute which became effective a week after

he entered his plea, but which applied to him upon his completion of a period of

community control and probation in 2001. The trial court denied the claims as

untimely, and we must affirm.

      Facts and Procedural History

      In 1997, Vega was charged with lewd and lascivious acts on a child (a girl

then fourteen years of age) in violation of section 800.04, Florida Statutes (1996).

The acts were allegedly committed in 1996 when Vega was 27 years old. On

September 15, 1997, Vega entered a plea of guilty to the charge. On September

27, 1997, the trial court entered an order withholding adjudication and placing

Vega on community control for a period of one year followed by four years of

probation.

      Allegedly unbeknownst to Vega at the time he considered and entered his

plea, the Florida Legislature’s enactment of the sexual offender registration statute,

section 943.0435, Florida Statutes (1997), became effective October 1, 1997. The

statute was subsequently held to apply retroactively without violating the Ex Post




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Facto Clause of the United States Constitution. Givens v. State, 851 So. 2d 813,

814-15 (Fla. 2d DCA 2003), review denied, 917 So. 2d 193 (Fla. 2005).

      Vega argues that he should be allowed to withdraw his plea because he did

not enter it with an understanding that his name and photograph would be

published and placed on the internet as a sexual offender, or that he would have

additional reporting duties to the Florida Department of Law Enforcement pursuant

to the post-plea statute. In its response, the State asserts that registration and

reporting as required by section 943.0435 are merely collateral consequences of his

plea, and that his motion was untimely.

      The sworn allegations in Vega’s motion assert that the victim was his

girlfriend at the time; that she became pregnant in 1996 following consensual

intercourse with him; that they married in 1997 (with the consent of his girlfriend’s

parents) and had a total of three children together; and that they are still together in

a loving and committed relationship. Vega successfully completed his community

control and probation in 2001.

      Vega now alleges under oath that, as a result of the sexual offender

designation, he cannot take his children to school, cannot attend school functions

or ceremonies, and cannot host a birthday party for his children. He has also

experienced significant difficulty obtaining employment because of his designation

as a sexual offender, making it difficult to provide financial support for his family.



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      The trial court concluded that Vega’s motion was untimely, that no

evidentiary hearing was required, and that the motion should be denied with

prejudice pursuant to Florida Rule of Criminal Procedure 3.850(f)(1). This appeal

followed.

      Analysis

      In Partlow v. State, 840 So. 2d 1040 (Fla. 2003), the Supreme Court of

Florida considered the primary argument raised now by Vega: “The issue is

whether, after being sentenced for a sexual offense pursuant to a plea of guilty or

nolo contendere, a defendant may withdraw his plea as involuntary because he was

not informed of the sexual offender registration requirement.” Id. at 1041. The

Court held that “the sexual offender registration requirement is a collateral

consequence of the plea, and therefore the failure to inform the defendant of that

requirement before he entered the plea does not render the plea involuntary.” Id.

      Three Justices dissented in Partlow, concluding that the failure to advise a

defendant of the potentially lifelong sexual offender registration and reporting

requirements of section 943.0435 may render a plea involuntary and subject to

withdrawal under Florida Rule of Criminal Procedure 3.170(l); such a failure, it

was argued in the dissent, “undermines the voluntariness of the plea because the

requirement is a direct rather than a collateral consequence.” Id. at 1047 (Pariente,

J., dissenting). A fourth Justice urged The Florida Bar’s Criminal Procedure Rules



                                         4
Committee to consider an amendment to Rule 3.172 “to require courts, before

accepting a plea, to inform defendants whenever the sexual offender registration

applies.” Id. at 1045 (Cantero, J., concurring).1

      In State v. Wiita, 744 So. 2d 1232 (Fla. 4th DCA 1999), the Fourth District

affirmed a trial court order allowing a defendant to withdraw his plea to a sexual

offense, though the plea was entered over six years before section 943.0435

became effective.

      Wiita claimed that because section 943.0435 was not in effect at the
      time he entered his plea agreement, the reporting and publication
      requirements of the statute were neither contemplated nor made a part
      of his plea agreement. Based upon these facts, Wiita argued that good
      cause existed to vacate his plea because it was not entered knowingly
      or voluntarily.

Id. at 1233.

      Wiita, though relied upon by Vega, is distinguishable in several respects.

First, Wiita moved to withdraw his plea only eight months after section 943.0435

became effective. In the present case, Vega’s motion was filed almost eighteen

years after the effective date of the statute, and fourteen years after he became

subject to the statutory registration and reporting requirements by virtue of his

completion of probation. Second, Wiita established that he and his counsel had

1 In 2005, Rule 3.172 was amended to add section (c)(9) to plea colloquies. That
section addresses a defendant’s possible subjection in certain cases to “involuntary
civil commitment as a sexually violent predator upon completion of his or her
sentence.” The Rule has not been amended, however, to address sexual offender
registration.

                                          5
negotiated a plea agreement based on express representations that this would allow

Wiita to “avoid publicity,” an expectation eliminated six years later when Wiita

“had publicity thrust upon him due to the requirements of section 943.0435 . . . .”

Id. at 1235. Third, Wiita was decided four years before the Supreme Court of

Florida comprehensively addressed the issue in Partlow. And finally, the Fourth

District upheld the trial court’s decision in Wiita based on the “abuse of discretion”

standard of review. We cannot say, based on the record in the present case, that

the trial court abused its discretion.

      With all of that said, one cannot help but question whether the registration

and reporting requirements are not a sort of latter-day Scarlet Letter in an unusual

case such as this; the offender and his victim married, have raised three children,

and seek to work and attend their children’s school events twenty years after the

offense. The only remedies available to such a family on this record, however,

appear to be (1) a petition to remove the sexual offender registration requirement,

which in this case cannot be filed before 2026,2 pursuant to section 943.0435(11),

Florida Statutes (2016), or (2) a petition to the Clemency Board of Florida for a

full pardon, pursuant to Article IV, Section 8(a), of the Florida Constitution, and


2 Registration is for the duration of the offender’s life unless he or she “has been
lawfully released from confinement, supervision, or sanction, whichever is later,
for at least 25 years and has not been arrested for any felony or misdemeanor
offense since release,” and satisfies all other requirements of section
943.0435(11)(a) and (b).

                                          6
Chapter 940, Florida Statutes (2016). We express no opinion as to the merits of

any such petition, should one be filed.

      Affirmed.




                                          7
                                               Ernesto Vega v. The State of Florida
                                                                         3D15-2916


Wells, J. (specially concurring).
      I agree with the majority’s conclusion that the order on appeal must be

affirmed. I do so because Vega’s motion was untimely and because, even had it

been timely filed, it would not have provided any basis for relief. This is so

because, as the majority opinion confirms, the sexual offender registration

requirement is a collateral consequence of a plea and because sexual offenders like

Vega by law are not eligible for relief from the requirements of section 943.0435

for at least twenty-fve years after release from confinement, supervision, or

sanction, whichever is later. See Partlow v. State, 840 So. 2d 1040 (Fla. 2003); §

943.0435 (11)(a), Fla. Stat. (2016).

      I do not, however, question the wisdom of the registration and reporting

requirements imposed by section 943.0435 as applied in this case or otherwise.

The law (here section 800.04) makes it a crime for a twenty-seven year old to

engage in specified sexual acts with a fourteen year old. See §800.04, Fla. Stat.

(2016). The law (section 943.0435) also requires a twenty-seven year old man,

such as Vega, who engages in sex with a fourteen year old, such as the victim here,

to be designated a sexual offender and to bear all of the burdens that go with it for

at least twenty-five years irrespective of his good intentions at the time or his



                                         8
subsequent “good” behavior.       See § 943.0435(11), Fla. Stat. (2016).         More

particularly, this law provides the means for giving notice to parents that this adult

has a history of sexually abusing a child, so that those parents may decide for

themselves whether to expose their children to him. § 943.0435(2)(a)2, Fla. Stat.

(2016) (requiring sexual offenders to report to a sheriff’s office “for registration”);

§ 943.043, Fla. Stat. (2016) (authorizing the department of law enforcement to

notify the public through the Internet and other means of any information not

confidential or exempt regarding sexual offenders). Rather than concern that this

sex offender now bears a “Scarlet Letter,” I take comfort in the fact that the law

has provided an avenue for parents to make their own decisions as to the care and

protection of their children.




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