Breitberg v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2009
MURRAY BREITBERG,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D06-3681
[July 1, 2009]
WARNER, J.
We reconsider this appeal from the denial of a rule 3.800(a) motion in
which appellant challenged his sexual predator designation. We had
originally affirmed the ruling in Breitberg v. State, 942 So. 2d 439 (Fla.
4th DCA 2006), on the ground that a challenge to the sexual predator
designation could not be made through a rule 3.800(a) motion, because
the sexual predator designation was not a sentence, relying on Saintelien
v. State, 937 So. 2d 234 (Fla. 4th DCA 2006), aff’d on other grounds, 990
So. 2d 494 (Fla. 2008). We certified conflict with King v. State, 911 So.
2d 229 (Fla. 2d DCA 2005), on the issue. In Saintelien, the supreme
court held that a rule 3.800(a) motion may be used to challenge a sexual
predator designation, but specified its holding applied only when it is
apparent from the face of the record that the criteria for designation were
not met. It then quashed our decision in this case, and remanded for
reconsideration and review of the record based upon Saintelien. See
Breitberg v. State, 3 So. 3d 1193 (Fla. 2009). Because the issue raised on
this challenge is not within the narrow ruling of Saintelien, we affirm.
Appellant claims his sexual predator designation is void, because it
was entered after he had filed a notice of appeal from his qualifying
conviction and sentence. This jurisdictional challenge was not addressed
in Saintelien. In that case, the supreme court acknowledged that the
sexual predator designation is not a sentence or a punishment. 990 So.
2d at 496. Bowing to the reality that criminal courts make that
designation shortly after sentencing, the court determined that for
judicial efficiency reasons, it would permit challenges to the sexual
predator designation to be made by filing a rule 3.800(a) motion but only
where it is apparent from the face of the record that the defendant did
not meet the criteria for being designated a sexual predator.
That is not the claim of appellant in this case. He does not challenge
that fact or claim that he does not meet the criteria. He challenges the
designation order as being made without jurisdiction because of the
pendency of his appeal. Therefore, given the narrow use of rule 3.800(a)
motions to correct sexual predator designation approved by Saintelien,
we affirm.
Even if this issue cannot be considered in a rule 3.800(a) challenge, if
the trial court was without jurisdiction it would make the order void and
thus reachable by some procedural vehicle. However, we conclude that
the filing of the notice of appeal of the conviction and sentence did not
divest the trial court of jurisdiction to enter the sexual predator
designation order. “The general rule is that an appeal of an order divests
the trial court of jurisdiction except to those matters which d o not
interfere with the power of the appellate court to determine the issues
which are on appeal.” Kimmel v. State, 629 So. 2d 1110, 1111 (Fla. 1st
DCA 1994). Because the sexual predator designation is not a sentence
at all, it would not interfere with the power of the appellate court to
dispose of issues related to appellant’s conviction and sentence. The trial
court was not divested of jurisdiction to consider the issue even after the
filing of an appeal.
Appellant relies on Shepherd v. State, 912 So. 2d 1250 (Fla. 2d DCA
2005), in which a sexual predator designation was vacated on direct
appeal, the appellate court concluding that the trial court was divested of
jurisdiction to amend the sentence after the filing of the notice of appeal.
Although Shepherd reaches a contrary result to our decision, it relied on
cases which hold that the trial court is “divested of jurisdiction to amend
the sentence” once an appeal is filed. Id. at 1252 (citing Dailey v. State,
575 So. 2d 237 (Fla. 2d DCA 1991)) (emphasis added). Because the
supreme court held in Saintelien that the sexual predator designation is
not a sentence, Shepherd’s analytical underpinning has been removed.
We therefore find it distinguishable.
Based upon the foregoing analysis, we affirm the order denying relief
to appellant.
FARMER and HAZOURI, JJ., concur.
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Appeal of order denying rule 3.800(a) motion from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Marc H. Gold,
Judge; L.T. Case No. 98-12202 CF10A.
Murray Breitberg, Belle Glade, pro se.
No appearance required for appellee.
Not final until disposition of timely filed motion for rehearing.
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