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Demus v. State

Florida Court of Appeals, Fourth District

October 10, 2019

PAUL DEMUS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No. 15-004876CF10A.

          Carey Haughwout, Public Defender, and Ikram Ally, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

          WARNER, J.

         Appellant challenges his convictions for two counts of failure to register as a sexual offender. The information charged appellant with failing to register within forty-eight hours after establishing or maintaining a permanent or transient address in Broward County and failing to similarly report to the Driver's License Bureau. Appellant moved for judgment of acquittal at the close of the State's case, because the State failed to prove the elements of the crime alleged in the information. The trial court denied the motion. We reverse because the State presented no evidence that appellant had established any type of residence in Broward County within the time frame alleged in the information.

         The State filed an information charging the appellant with failure to register as a sex offender. Count I of the information stated:

[Appellant] on or between the 3rd day of February, 2015, and the 10th day of April, 2015, in the County and State aforesaid [Broward County], being a sexual offender, did fail to report in person within 48 hours of establishing a permanent, temporary, or transient residence within Broward County, Florida and provide the required information to the Broward County Sheriff's Office contrary to FS 943.0435(2) and 943.0435(9)(a).

         Count II of the information provided:

[Appellant] on or between the 3rd day of February, 2015, and the 10th day of April, 2015, in the County and State aforesaid, being a sexual offender, did fail to report in person to a driver's license office and provide the required information within 48 hours after a change in his permanent, temporary, or transient residence, contrary to FS 943.0435(4) and 943.0435(9).

         The parties stipulated that appellant was previously convicted as a sexual offender, which triggered the reporting requirements of section 943.0435, Florida Statutes. At trial, the State's sole witness was an employee of the FDLE in the Sex Offender Registry Department in 2015. On March 25, 2015, she searched several databases and discovered that appellant never registered within the forty-eight hour period after he was released from the Department of Corrections. She noted that the databases reflected that he had been released from prison on February 1, 2015. His last registration prior to his prison term was in 2009, at which time he listed his residence in Miami. Over objection, she was allowed to testify that he had registered on June 1, 2015 (a date outside the time parameters in the information), as a transient in Broward County. The FDLE employee had no personal knowledge as to where he was actually residing from February 1, 2015, to the date of her search. She had seen a video of him leaving a supermarket in Hollywood, Florida, but no date of that video was given. A "Record of Inmate Discharge" form admitted by the State through her testimony and signed by appellant on January 20, 2015, noted his "County of Discharge" as "Miami Dade" and his Release Address as homeless, "Miami, FL." It also noted that transportation was required to Miami.

         After presentation of the State's case, appellant's attorney moved for judgment of acquittal, contending that the State had failed to prove that appellant had ever established any kind of residence in Broward County. The trial court denied the motion. The defense presented no witnesses, and the case was submitted to the jury. On the charges of failure to register, the jury was instructed as follows:

To prove the crime of failure by a sexual offender to comply with registration requirements the state must prove the following three ...

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