       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 22, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2038
                          Lower Tribunal No. 16-4968
                             ________________


                                  Kevin Paul,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.

      ROTHENBERG, C.J.
      Kevin Paul (“the defendant”) appeals the trial court’s entry of an order

denying his motion to dismiss for lack of jurisdiction, wherein the trial court

determined that jurisdiction was justified based on the effect of the defendant’s

conduct in Florida. Because we find that the State of Florida properly and

reasonably exercised jurisdiction, we affirm.

                                BACKGROUND

      The defendant, a crewmember aboard the Norwegian Pearl, attempted to

commit a sexual battery against a fellow crewmember (“the victim”) while the

Norwegian Pearl was in international waters. The defendant is a citizen of

Grenada, and the victim is a citizen of Nicaragua. Neither the defendant nor the

victim are Florida residents. The Norwegian Pearl flies under the Bahamian flag.

Norwegian Cruise Line Holdings, Ltd., owns the Norwegian Pearl and is a

Bermudian company, but the company’s headquarters is in Miami, Florida. The

Norwegian Pearl departed from Miami and returned to Miami, and nearly all of the

revenue passengers embarked and disembarked in Miami.

      After the attempted sexual battery was reported, the defendant was taken

into custody by the ship’s Captain (master of the ship) and confined to the brig on

the Norwegian Pearl until the ship returned to Miami. Upon its return to Miami,

Miami-Dade     law   enforcement    was       contacted,   and   Miami-Dade   police

subsequently took the defendant into custody. The State of Florida charged the



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defendant by information with battery, attempted sexual battery, and false

imprisonment.

      The defendant filed a motion to dismiss the charges brought by the State for

lack of subject matter jurisdiction. The trial court denied the motion based on its

determination that Florida’s exercise of jurisdiction under section 910.006(3)(d),

Florida Statutes (2016), was appropriate and justified based on the effect of the

defendant’s criminal conduct in Florida. Thereafter, the defendant pled guilty to

one count of attempted sexual battery without serious personal injury, reserving his

right to appeal the order denying his motion to dismiss. The defendant’s appeal

followed.

                                    ANALYSIS

      Whether a court has subject matter jurisdiction is a question of law, which

we review de novo. Mobley v. State, 197 So. 3d 572, 574 (Fla. 4th DCA 2016);

Nissen v. Cortez Moreno, 10 So. 3d 1110, 1111 (Fla. 3d DCA 2009).

      Pursuant to section 910.006(3)(d), Florida has criminal jurisdiction over acts

taking place on board a ship outside of Florida’s territory where “[t]he act or

omission occurs during a voyage on which over half of the revenue passengers on

board the ship originally embarked and plan to finally disembark in this state,

without regard to intermediate stopovers.” In the instant case, it is undisputed that

over half of the Norwegian Pearl’s revenue passengers embarked from and



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disembarked in Miami, Florida. In fact, 2,885 of the 2,888 revenue passengers

aboard the Norwegian Pearl embarked and disembarked in Miami. Therefore, it is

clear that section 910.006(3)(d) extends jurisdiction over the defendant’s conduct.

      Although the defendant concedes as much, the defendant contends that

Florida’s exercise of jurisdiction under this statute is nevertheless unconstitutional

as applied to the defendant because the specific exercise of jurisdiction in this case

falls outside of Florida’s traditional police powers. On the other hand, the State

contends that the exercise of jurisdiction in this case does fall within Florida’s

traditional police powers pursuant to the “effects doctrine,” which refers to a

state’s sovereign authority to punish a criminal act occurring outside of the

territory of the state if the act has a significant effect within the state. See State v.

Stepansky, 761 So. 2d 1027, 1035-36 (Fla. 2000) (stating that an extraterritorial

exercise of criminal jurisdiction may fall within Florida’s traditional police powers

pursuant to the “effects doctrine” so long as it (1) “does not conflict with federal

law” and (2) “is a reasonable application of the effects doctrine”).

      Thus, the specific and narrow issue in this appeal is whether the effects

doctrine was reasonably applied in this case.1 The defendant also concedes that if a

revenue passenger was involved in the crime, then Florida would have jurisdiction

pursuant to the effects doctrine because the criminal conduct could, if left

1 The defendant does not suggest that there is a conflict between Florida law and
federal law, and he has expressly waived any preemption arguments on appeal.

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unprosecuted, affect Florida’s cruise-reliant tourism economy. The defendant’s

argument in this appeal is that it is unreasonable to conclude that his criminal

conduct in international waters will have a significant effect on Florida’s tourism

industry because the crime involved only foreign crewmembers, which the

defendant contends does not involve or pose a threat to revenue passengers. In

other words, the defendant contends that even if a sexual assault between

crewmembers were to go unprosecuted, Florida’s tourism economy would not be

significantly affected. We reject the defendant’s argument because we find the

distinction between working passengers and revenue passengers on board cruise

ships to be entirely without merit.

      Both the Florida Supreme Court and the Florida Legislature have recognized

Florida’s interest in protecting all persons who travel on cruise ships departing

from and returning to Florida. The Legislature has not limited its intent to revenue

passengers. See §§ 910.006(1)(a-b) (stating that “[t]he State of Florida is a major

center for international travel and trade by sea,” and that “[t]he state has an interest

in ensuring the protection of persons traveling to or from Florida by sea”);

Stepansky, 761 So. 2d at 1036 (citing United States v. Roberts, 1 F. Supp. 2d 601,

607-08 (E.D. La. 1998) (emphasis added); United States v. Pizdrint, 983 F. Supp.

1110, 1112-13 (M.D. Fla. 1997)). As the Florida Supreme Court specifically noted

in Stepansky, “Florida’s tourism industry could be significantly affected if crimes



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that occur on board cruise ships where a majority of the fare-paying passengers

embark and disembark in Florida were to go unprosecuted.” Stepansky, 761 So. 2d

at 1036. The Florida Supreme Court did not limit its holding to the status of those

involved in the criminal incident. Indeed, the defendant has not pointed to any case

in Florida that distinguishes between crewmembers and passengers for the purpose

of determining whether Florida may exercise jurisdiction. The threat that

unprosecuted cruise-ship crimes pose to Florida’s tourism industry is not somehow

lessened by the fortuitous fact that the defendant chose to attack a fellow

crewmember (working passenger) instead of a revenue passenger. Accordingly, we

find, based on the facts of this case, that the effects doctrine is a reasonable and

proper basis for exercising jurisdiction in Florida.2

                                  CONCLUSION

      In short, nothing in the record suggests that the application of the effects

doctrine would be unreasonable in this case. Accordingly, because Florida has the

sovereign authority to exercise criminal jurisdiction based on section 910.006(3)(d)




2 We additionally note that, contrary to the defendant’s arguments, there are no
comity concerns in this case. Although the legislature has made it clear in section
910.006(5)(a)(1) that “[t]his section is not intended to assert priority over or
otherwise interfere with the exercise of criminal jurisdiction by the United States,
the flag state, or the state in whose territory an act or omission occurs,” this
provision is not even implicated in this case as there is no evidence that any other
state has attempted to exercise jurisdiction over the defendant’s conduct.

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and the effects doctrine, we conclude that the trial court properly denied the

defendant’s motion to dismiss.

      Affirmed.




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