                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

JOHNNY L. SADLER, JR.,                 NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D13-2913

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 14, 2014.

An appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

Johnny L. Sadler, Jr., pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Johnny L. Sadler, Jr., appeals the summary denial of his motion seeking

postconviction relief brought pursuant to Florida Rule of Criminal Procedure

3.850. For the reasons discussed below, we reverse and remand.
      On July 28, 1999, the appellant was convicted of unlawful sexual activity

with a minor in Santa Rosa County case number 1998-CF-0818 and designated as

a sexual predator. On July 30, 2007, the appellant was charged in the instant case,

Escambia County case number 2007-CF-3786, with two counts of the failure of a

sexual predator to register pursuant to sections 775.21(6)(g) and (6)(i), Florida

Statutes (2007). On December 18, 2007, the appellant pled nolo contendere to the

charges and was subsequently sentenced to 60 months in prison for each offense.

He did not seek a direct appeal.

      On August 16, 2011, the appellant filed a motion pursuant to Florida Rule of

Criminal Procedure 3.800(a) in case number 1998-CF-0818, arguing that he had

been improperly designated as a sexual predator. On May 8, 2012, this court

reversed the trial court’s denial of that motion and remanded with orders to strike

the appellant’s sexual predator designation. Sadler v. State, 112 So. 3d 498, 499

(Fla. 1st DCA 2012). On June 20, 2012, the trial court issued an order striking the

designation.

      On May 11, 2012, the appellant filed the instant rule 3.850 motion in case

number 2007-CF-3786, arguing that his convictions for the failure to comply with

registration requirements are invalid because they were based upon the erroneous

sexual predator designation in case number 1998-CF-0818. He further alleged that

he has continuously fought the designation since it was imposed and that the

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opinion and order granting him relief in case number 1998-CF-0818 constitute

newly discovered evidence excusing him from compliance with rule 3.850’s two-

year time limitation.

      On May 21, 2013, the lower court summarily denied the motion, finding the

motion to be untimely based upon the conclusion that the improper sexual predator

designation could have been discovered earlier through the use of diligence.

      Rule 3.850(b) requires a motion pursuant to this rule to be brought within

two years of the movant’s judgment and sentence becoming final. If no direct

appeal is taken, a judgment and sentence become final after the 30-day period for

filing an appeal has expired. Saavedra v. State, 59 So. 3d 191, 192 (Fla. 3d DCA

2011). Here, the appellant was sentenced on October 16, 2008, and he did not seek

a direct appeal. Therefore, the appellant had until November 17, 2010, to bring a

timely rule 3.850 motion, and the instant motion was filed almost two years after

this time limitation expired.

      However, an exception to the rule’s timing requirements is allowed when

“the facts on which the claim is predicated were unknown to the movant or . . . and

could not have been ascertained by the exercise of due diligence” and that the

claim is raised “within 2 years of the time the new facts were or could have been

discovered with the exercise of due diligence.” Fla. R. Crim. P. 3.850(b)(1).

Ordinarily, if the due diligence requirement is met, the trial court must next decide

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whether the newly discovered evidence would likely result in acquittal on retrial.

Murrah v. State, 773 So. 2d 622, 632 (Fla. 1st DCA 2000). However, where an

appellant pled guilty rather than stand trial, a claim for postconviction relief under

rule 3.850 based upon newly discovered evidence is analyzed under the standard

applicable to the withdrawal of pleas after sentencing. See Johnson v. State, 936

So. 2d 1196, 1197 (Fla. 1st DCA 2006). Therefore, the appellant must establish

that withdrawal of the plea is necessary to correct a manifest injustice. Scott v.

State, 629 So. 2d 888, 890 (Fla. 4th DCA 1993).

       It has been held that an order vacating a conviction that served as a predicate

for the imposition of a habitual sentence qualifies as newly discovered evidence.

Wilson v. State, 857 So. 2d 964, 965 (Fla. 1st DCA 2003). In Wilson, the

defendant’s 1984 robbery conviction was vacated by a Maryland court on

December 21, 2000. Id. The defendant then filed for postconviction relief in a 1991

case which relied upon his 1984 robbery conviction to habitualize him. Id. This

court concluded that, as the predicate conviction was not vacated until December

21, 2000, the Maryland court opinion and order are “clearly newly discovered

facts.” Id.

       In the instant case, the appellant pled to the charge of failure to register more

than seven years after he was designated a sexual predator in case number 1998-

CF-3638. Nonetheless, the appellant did not successfully obtain the order striking

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his designation until June 20, 2012. Thus, pursuant to Wilson, this order qualifies

as newly discovered evidence that could not have been discovered earlier through

the exercise of diligence.

      Further, the appellant has established that the withdrawal of his plea is

necessary to correct a manifest injustice. In the instant case, the appellant’s

conviction was based upon the premise that he met the criteria for designation as a

sexual predator and failed to comply with the registration requirements that were

imposed because of this designation. However, the appellant did not actually meet

the criteria for the imposition of the designation. Without the designation, he could

not have been convicted of the instant offenses. See Fla. St. Jury Instr. (Crim.)

11.15(g) (reciting as an element of the offense of the failure of a sexual predator to

register that the defendant be a sexual predator).

      This situation is similar to cases where a defendant is convicted of the

possession of a firearm by a convicted felon and the predicate felony is

subsequently found to be invalid. For instance, in Johnson v. State, 664 So. 2d 986

(Fla. 4th DCA 1995), approved in part, 668 So. 2d 194 (Fla. 1996), the defendant

argued that his conviction for the possession of a firearm by a convicted felon

should be vacated as the predicate felony had been reversed on appeal. In

reviewing the trial court’s order denying the motion, the Fourth District Court of

Appeal agreed with the defendant and reversed, concluding that, as there was no

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predicate conviction upon which the charge could be based, the defendant’s

conviction for the possession of a firearm by a convicted felon “must necessarily

be vacated.” Id. at 988. Similarly, in Malcom v. State, the Third District Court of

Appeal vacated a defendant’s conviction for possession of a firearm by a convicted

felon where it was discovered that adjudication had been withheld as to the

predicate felony. 605 So. 2d 945, 948 (Fla. 3d DCA 1992).

      In the instant case, as in Johnson and Malcom, the underlying factual basis

for the appellant’s convictions was invalid. He could not have been convicted of

the charged offenses had he not been erroneously designated as a sexual predator.

Given this information, we REVERSE the denial of the appellant’s motion and

REMAND with instructions for the trial court to vacate the convictions for the

failure of a sexual predator to register.

ROBERTS, RAY, and SWANSON, JJ., CONCUR.




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