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


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

JOSE FIGUEROA,                    )
                                  )
           Appellant,             )
                                  )
v.                                )              Case No. 2D13-1357
                                  )
STATE OF FLORIDA,                 )
                                  )
           Appellee.              )
_________________________________ )

Opinion filed January 21, 2015.


Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.

Howard L. Dimmig, II, Public Defender,
and Richard P. Albertine, Jr., Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa,
for Appellee.


NORTHCUTT, Judge.


             The State charged Jose Figueroa with failing to register as a sexual

offender pursuant to section 943.0435(4)(a), Florida Statutes (2010), and a jury

convicted him of that crime. He contends that the evidence did not support his
conviction because that subsection applies only to an offender who changes his

residence within the State of Florida, not to an offender who moves to another

jurisdiction. We conclude that the trial court should have granted Figueroa's motion for

judgment of acquittal on this point, and therefore we reverse and remand with directions

to discharge him.

                Figueroa testified that in May 2010, he registered as a sexual offender

with the Hillsborough County Sherriff's office, listing an address within the county. But

later that month he moved to Puerto Rico, where he was born and where his family

lived. He returned to Florida only when, in April 2012, U.S. Marshals arrested him in

Puerto Rico and brought him back to Florida to face the instant failing to register charge.

Figueroa recounted that he had tried to register at a police station in Puerto Rico, but he

was told that it was unnecessary to do so if he had not committed a crime in that

jurisdiction.

                Figueroa was charged with violating section 943.0435(4)(a), which states

in pertinent part:

                (4)(a) Each time a sexual offender's driver's license or
                identification card is subject to renewal, and, without regard
                to the status of the offender's driver's license or identification
                card, within 48 hours after any change in the offender's
                permanent, temporary, or transient residence or change in
                the offender's name by reason of marriage or other legal
                process, the offender shall report in person to a driver's
                license office, and is subject to the requirements specified in
                subsection (3).

But section 943.0435 also provides, in subsection (7), that:

                (7) A sexual offender who intends to establish a permanent,
                temporary, or transient residence in another state or

                                               -2-
              jurisdiction other than the State of Florida shall report in
              person to the sheriff of the county of current residence within
              48 hours before the date he or she intends to leave this state
              to establish residence in another state or jurisdiction. The
              notification must include the address, municipality, county,
              and state of intended residence. The sheriff shall promptly
              provide to the department the information received from the
              sexual offender. The department shall notify the statewide
              law enforcement agency, or a comparable agency, in the
              intended state or jurisdiction of residence of the sexual
              offender's intended residence. The failure of a sexual
              offender to provide his or her intended place of residence is
              punishable as provided in subsection (9).

(Emphasis added).

              At the close of all evidence, Figueroa moved for a judgment of acquittal on

the ground that the State had charged him under the wrong subsection. The only

evidence in the case regarding Figueroa's residency was his own testimony that he

moved from his registered address in Hillsborough County to Puerto Rico. The State

offered no evidence of an interim move within Florida that would have triggered the

section 943.0435(4)(a) requirement that a sexual offender "report in person to a driver's

license office" about his change in residence. And as the defense aptly noted, it would

be impossible for someone living in Puerto Rico to "appear in person" at a Florida

driver's license office. Nor would a Puerto Rico resident be eligible to obtain a Florida

driver's license or identity card. See § 943.0435(4)(a) (subjecting the offender to

requirements of subsection (3) of the statute); § 943.0435(3)(a) (requiring the offender

to secure or renew a Florida driver's license or to obtain a Florida identification card).

              We recognize that section 943.0435(4)(a) does not specifically state that it

pertains only to an offender's change of residence within this state. But that is the clear


                                             -3-
assumption behind the subsection's directive to report in person at a Florida driver's

license office within 48 hours after the move. In contrast, section 943.0435(7) does

specify that it applies to an offender who "intends to leave this state to establish

residence in another state or jurisdiction."1 Applying the doctrine of in pari materia, we

read statutes relating to the same subject matter together in order to harmonize the

provisions and to effect the legislature's intent. See Larimore v. State, 2 So. 3d 101,

106 (Fla. 2008). Section 943.0435(7) specifically sets forth the obligations imposed on

an offender who establishes residency outside Florida; by clear implication, section

943.0435(4)(a) does not. Reading the statutes together, as we must, we conclude that

subsection (4)(a) applies only to a move inside Florida, while subsection (7) concerns a

move outside the state.

              The Florida Supreme Court's adoption of Standard Jury Instructions

11.14(d) and 11.14(e) supports our analysis of these statutory subsections. See In re

Standard Jury Instructions in Criminal Cases—Report No. 2007-4, 983 So. 2d 531, 536-

38 (Fla. 2008). When the crime of failure to register as a sexual offender is charged

under section 943.0435(7), the jury must find that the accused "[established]

[maintained] a permanent, temporary, or transient residence in (name of county)

County, Florida," and that he "intended to leave this State to establish residence in

another state or jurisdiction on (date)." Fla. Std. Jury Instr. (Crim.) 11.14(e).




              1
                 The legislature amended section 943.0435(7) in 2014 to explicitly state
that it applies to an offender who intends to establish a residence outside the United
States. Ch. 14-5, § 5, at 102, Laws of Fla.

                                             -4-
Standard instruction 11.14(d), which is given when the crime is charged under section

943.0435(4), contains no such proviso.

             The Fifth District examined this question in Binder v. State, 853 So. 2d

537, 539 (Fla. 5th DCA 2003), albeit in the reverse scenario. Although Binder was

charged with violating section 943.0435(7), the evidence established that he had not

moved outside Florida but rather had changed residences within the City of Kissimmee.

It appeared to the Fifth District that Binder had been charged under the wrong statutory

subsection. But Binder had never raised the issue in the trial court. He had pleaded

nolo contendere to the offense without objecting to the mistaken charge or reserving his

right to appeal, and he had not moved to withdraw his plea. For this reason, the court

determined that he could not attack the conviction on appeal. Here, however, the issue

is squarely before us because Figueroa moved for a judgment of acquittal on the

ground that the evidence could not support a conviction under the subsection he was

charged with violating.

             Section 943.0435(4)(a) did not apply to the facts of this case, and the

evidence presented at trial did not prove a violation of that statutory crime. We reverse

Figueroa's conviction and remand with directions to discharge him.



SILBERMAN and CRENSHAW, JJ., Concur.




                                           -5-
-6-
