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State v. Hernandez

Florida Court of Appeals, Third District

August 28, 2019

State of Florida, Petitioner,
v.
Oresaide Hernandez n/k/a Oresaydee Munoz, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, Alberto Milian, Judge. Lower Tribunal No. 93-15016A

          Ashley Moody, Attorney General, and Bilal Ahmed Faruqui, Senior Assistant Attorney General, (Tallahassee), for petitioner.

          Kenneth P. Speiller, for respondent.

          Before EMAS, C.J., and LOGUE and GORDO, JJ.

          GORDO, J.

         The State seeks certiorari review of the trial court's order granting Oresaide Hernandez's Motion to Delete Registration Requirement directing the Florida Department of Law Enforcement ("FDLE") to remove the statutory requirement that Ms. Hernandez register as a sexual offender. Because the trial court's order constitutes a departure from the essential requirements of the law resulting in a miscarriage of justice, we grant the State's petition and quash the order below.

         FACTUAL & PROCEDURAL BACKGROUND

         On September 27, 1993, Ms. Hernandez was convicted of kidnapping a minor, conspiracy to commit a first-degree felony and sexual battery. Thereafter, she was sentenced to four years in prison followed by two years of community control. Due to a violation of the terms of community control, Ms. Hernandez's supervision was extended and she was not released from supervision until March 20, 2000.

         Four years after her conviction, the Legislature enacted the Public Safety Information Act creating section 943.0435 of the Florida Statutes. The Legislature deemed that public safety concerns compelled the cataloguing of sexual offenders. Section 943.0435, entitled "Sexual offenders required to register with the department; penalty," mandates that all persons convicted of qualifying offenses register as sexual offenders with FDLE. The Act requires sexual offenders to report their current residence to FDLE, provides procedures for reporting and dictates a penalty for failing to report as required.

         The sexual offender designation is based on statutory criteria. Section 943.0435 defines "Sexual offender" as a person who:

(I) Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: . . . s. 787.01, . . . where the victim is a minor . . .
(II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.

ยง 943.0435(1)(h)1a(I)-(II), Fla. Sta. (2018). Section 787.01 specifically defines "kidnapping." Thus, this statutory framework requires persons convicted of kidnapping a minor to register as sexual offenders with FDLE and applies to anyone who has been released from a sanction imposed upon ...


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