       Third District Court of Appeal
                               State of Florida

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

                               ________________

                               No. 3D15-2848
                         Lower Tribunal No. 00-25906
                             ________________


                             Keith Wromas, Jr.,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Alberto Milian, Judge.

      Keith Wromas, Jr., in proper person.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before WELLS, SHEPHERD and SCALES, JJ.


      SHEPHERD, J.
      Keith Wromas appeals the denial of his motion to correct illegal sentence

under Florida Rule of Criminal Procedure 3.800, which in essence was a petition

for removal of the requirement to register as a sexual offender under the “Romeo

and Juliet Law,” section 943.04354 of the Florida Statutes (2016). Because it

appears that despite two pro se attempts, the trial court has not exercised its

discretion to address the merits of Wromas’ petition, we reverse.

      On November 7, 2000, Wromas pled guilty to lewd and lascivious battery on

a child twelve to sixteen years of age in violation of section 800.04(4), Florida

Statutes (1999). The charged offense was eighteen-year-old Wromas’ consensual

sexual relations with his fifteen-year-old girlfriend, as a result of which the couple

conceived a child.    Wromas’ conviction lead to one year of probation,1 and

automatic designation as a sexual offender for life under section 943.0435, Florida

Statutes (1999).

      On July 27, 2009, Wromas wrote a letter to the trial judge, requesting to be

removed from the sexual offender list under the “Romeo and Juliet Law.” Under

this law, a sexual offender may petition for removal if the defendant meets certain

requirements, including proving that the sexual relationship was consensual

between a defendant who is not more than four years older than the victim. The


1 In May of 2002, Wromas admitted violating his probation and was sentenced to
three years in prison in the case. As a result of subsequent convictions, Wromas
presently is serving an eighteen-year prison sentence.

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trial court treated the letter as a petition for removal of Wromas’ sexual offender

designation, and summarily dismissed the petition on September 9, 2009. Wromas

subsequently filed the Rule 3.800 motion, which the trial court denied after

receiving the State’s response. In its response, in addition to challenging the

appropriateness of Rule 3.800 relief, the State argued Wromas’ motion should be

denied because the statute prohibits more than one request for removal and

Wromas’ subsequent convictions disqualify him from removal. The order denying

the motion does not contain the trial court’s reason for denying relief.

      The fact that Wromas’ motion incorrectly sought relief under Rule 3.800

does not warrant summary denial of Wromas’ request for removal of sexual

offender designation under the statute. See, e.g., Barrett v. State, 965 So. 2d 1260,

1261 (Fla. 2d DCA 2007) (“Article V, section 2(a) of the Florida Constitution

requires that no cause be dismissed because an improper remedy has been sought.

Accordingly, the trial court should have considered whether Barrett had alleged

sufficient facts to warrant relief and, if so, treated his motion as if the proper

remedy had been sought.”). Just as it did with Wromas’ 2009 letter, the trial court

should have treated the Rule 3.800 motion as a petition for removal of the sexual

offender designation.

      Although the statute provides for only one petition, the summary denial of

Wromas’ 2009 request for removal of designation also does not preclude



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considering his most recent request. § 943.04354(2)(b) (“If the court denies the

motion, the person is not authorized under this section to file another motion for

removal of the registration requirement.”).        The 2009 request was summarily

denied without a hearing or participation from the State. Thus, it would seem the

court found Wromas’ letter to be facially insufficient and did not consider the

merits of the petition. See Horton v. State, 127 So. 3d 825 (Fla. 2d DCA 2013)

(affirming the dismissal of petition for removal of the sexual offender designation

as facially insufficient, but indicating defendant was not barred from filing a

facially sufficient petition). As our sister court concluded in Martinez v. State, 111

So. 3d 915, 918 (Fla. 2d DCA 2013), a defendant is entitled to have his petition

considered “where the trial court knows that the statute applies and, thus, can

exercise its discretion to either grant or deny relief.”

      Finally, the trial court’s failure to reveal its reason for denying relief also

prevents affirmance based on Wromas’ subsequent criminal record. A trial court

may, within its discretion, deny a petition for removal of a sexual offender

designation because of the defendant’s criminal record. See Matos v. State, 184

So. 3d 1194 (Fla. 5th DCA 2015). However, the record must show that the trial

court exercised its discretion in so ruling. Id. at 1195-96 (“In this current order,

though, unlike in Matos I, the trial court also analyzed Matos’s petition under the

second, discretionary prong. . . . Matos is currently serving a life sentence and has



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been convicted of several previous violent offenses.”). In this case, we are unable

to determine whether the trial court properly exercised its discretion to deny

Wromas’ petition for this reason.

      Accordingly, we reverse the denial of Wromas’ petition for removal of the

sexual offender designation and the concurrent registration requirement, and

remand for the trial court to consider whether Wromas is entitled to relief given the

circumstances in this case.

      Reversed and remanded for further proceedings.




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