       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                      MYRON J. MONTGOMERY,
                            Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-3757

                             [April 15, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562010CF002604AXXXX.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

   Myron J. Montgomery appeals the trial court’s final order designating
him a sexual predator. We reverse.

   Montgomery was charged with three counts of lewd or lascivious
molestation on a victim under twelve and one count of child abuse. He
entered a negotiated plea to child abuse and was sentenced to six years in
the Department of Corrections as a habitual felony offender. The trial
court also designated Montgomery a sexual predator based on a prior
Pennsylvania conviction for rape by threat of forcible compulsion.

   On appeal, Montgomery argues that the trial court erred in applying
the sexual predator designation because the Florida statute governing
sexual battery, section 794.011 of the Florida Statutes, is narrower in
scope than the Pennsylvania statute governing rape by threat of forcible
compulsion, section 3121(2) of the Pennsylvania Consolidated Statutes.
The State counters that the two statutes are analogous even though the
Pennsylvania law offers several alternative methods for violating the
statute. The State also argues that the trial court can consider the facts
underlying the foreign conviction, which suggest that “force or violence
likely to cause serious personal injury” was involved. We reject the State’s
arguments.

   The issue in this case is whether Montgomery qualifies for a sexual
predator designation by virtue of his Pennsylvania conviction for rape by
threat of forcible compulsion. “The interpretation of a statute is a purely
legal matter and therefore subject to the de novo standard of review.”
Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006).

   Montgomery is eligible for a sexual predator designation if the
Pennsylvania law he was convicted of violating is similar to one of the
enumerated Florida laws that qualify for the designation.             See
§ 775.21(4), Fla. Stat. (2012). Here, the trial court concluded that
Montgomery’s conviction for violating section 3121(2) of the Pennsylvania
Consolidated Statutes (1994) was similar to a violation of section
794.011(4)(b), Florida Statutes (1993). Thus, our analysis requires us to
compare these two statutes.

   Section 3121(2) of the Pennsylvania Consolidated Statutes provides
that:

      A person commits a felony of the first degree when he engages
      in sexual intercourse with another person not his spouse

         ...

         (2) by threat of forcible compulsion that would prevent
             resistance by a person of reasonable resolution;

18 Pa. Cons. Stat. § 3121(2) (1994). However, under section 794.011(4)(b),
Florida Statutes:

      (4) A person who commits sexual battery upon a person 12
          years of age or older without that person’s consent, under
          any of the following circumstances, commits a felony of the
          first degree . . .

            ...

            (b)   When the offender coerces the victim to submit by
                  threatening to use force or violence likely to cause
                  serious personal injury on the victim, and the

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                     victim reasonably believes that the offender has
                     the present ability to execute the threat.

§ 794.011(4)(b), Fla. Stat. (1993).

   Our comparison of these statutes leads us to the inescapable
conclusion that section 3121(2) of the Pennsylvania Consolidated Statutes
is not similar to section 794.011(4)(b), Florida Statutes. Montgomery
correctly points out that the Florida statute is narrower in scope than the
Pennsylvania statute. It requires coercion by threatening to use “force or
violence likely to cause serious personal injury” as well as proof of the
victim’s reasonable belief in the offender’s ability to carry out the threat. §
794.011(4)(b), Fla. Stat. (1993). The Pennsylvania statute merely requires
“forcible compulsion that would prevent resistance by a person of
reasonable resolution.” 18 Pa. Cons. Stat. § 3121(2) (1994). Forcible
compulsion “includes not only physical force or violence but also moral,
psychological or intellectual force used to compel a person to engage in
sexual intercourse against that person’s will.” Commonwealth v. Rhodes,
510 A.2d 1217, 1226 (Pa. 1986) (emphasis added). Thus, a defendant does
not necessarily need to threaten “force or violence likely to cause serious
personal injury” to violate the Pennsylvania statute. Moreover, unlike the
Florida statute, the Pennsylvania statute does not require the state to
establish the victim’s reasonable belief in the defendant’s ability to carry
out the threat.

    Additionally, the Florida Legislature drew a distinction between sexual
battery on a person over twelve which involves coercion by threatening “to
use force or violence likely to cause serious personal injury,”
§ 794.011(4)(b), Fla. Stat. (1993), and sexual battery on a person over
twelve that does not involve “physical force and violence likely to cause
serious personal injury,” § 794.011(5), Fla. Stat. (1993).1 The former
offense, which the trial court deemed similar to the Pennsylvania statute,
is a first degree felony that triggers the sexual predator designation
whereas the latter offense is a second degree felony which does not.
Compare § 794.011(4)(b), Fla. Stat. (1993), with § 794.011(5), Fla. Stat.
(1993). Based on the broad definition of “forcible compulsion,” the
Pennsylvania statute is similar to both provisions and, thus, cannot
definitively qualify Montgomery for a sexual predator designation. See
Durant v. State, 94 So. 3d 669, 671–72 (Fla. 5th DCA 2012) (reversing

   1   “A person who commits sexual battery upon a person 12 years of age or
older, without that person’s consent, and in the process thereof does not use
physical force and violence likely to cause serious personal injury commits a felony
of the second degree.” § 794.011(5), Fla. Stat. (1993) (emphasis added).

                                       -3-
dangerous felony sexual offender designation because statute defendant
was convicted of violating not only contained elements similar to statute
that qualified for the designation, but also had elements similar to another
statute that did not qualify for the designation).

    In determining that Montgomery’s Pennsylvania conviction does not
qualify him for a sexual predator designation, we also reject the State’s
argument that the trial court may look to the underlying facts of the
qualifying offense to establish whether two laws are similar. Section
775.21(4) expressly refers to “a similar law of another jurisdiction,” as
opposed to similar conduct. See § 775.21(4), Fla. Stat. (2012) (emphasis
added). If the legislature intended for courts to look to the underlying facts
of the foreign conviction, it would have expressed that intent in the statute.
See State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) (“Under the canon of
statutory construction expressio unius est exclusio alterius, the mention of
one thing implies the exclusion of another.”) (citing Young v. Progressive
Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000)). Additionally, no Florida court
has looked to the underlying facts of a foreign conviction to satisfy the
similarity test. See, e.g., Fike v, State, 63 So. 3d 847, 848–49 (Fla. 5th
DCA 2011) (holding that defendant’s Michigan conviction did not qualify
him for sexual predator designation without considering the underlying
facts); see also Dautel v. State, 658 So. 2d 88, 89 (Fla. 1995) (“[O]nly the
elements of the out-of-state crime should be considered in determining
whether that conviction is analogous to a Florida statute for the purpose
of calculating points for a sentencing guidelines scoresheet.”). Without
considering the facts underlying Montgomery’s Pennsylvania conviction,
we cannot conclude that he violated “a similar law of another jurisdiction.”
Accordingly, we hold that the trial court erred in designating Montgomery
a sexual predator based on his Pennsylvania conviction.

   Reversed and remanded with instructions for trial court to remove sexual
predator designation.

CONNER and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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