Garcia v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LIONARDO GARCIA, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) Case No. 2D01-4900 Opinion filed October 16, 2002. Appeal from the Circuit Court for Pasco County; Maynard F. Swanson, Jr., Judge. Lionardo Garcia, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. ALTENBERND, Judge. Lionardo Garcia pleaded guilty to committing a lewd and lascivious act pursuant to section 800.04(2), Florida Statutes (1999). The trial court sentenced Mr. Garcia to five years imprisonment. At the plea hearing, the court made no mention of designating Mr. Garcia a sexual predator. After Mr. Garcia was incarcerated, the Department of Corrections sent a letter to the court indicating that Mr. Garcia might be eligible for a sexual predator designation. A hearing was held on October 18, 2001, in which Mr. Garcia was incorrectly designated as a sexual predator. Mr. Garcia appeals the order designating him as a sexual predator. Under section 775.21(4)(c)(1)(c), Florida Statutes (Supp. 1998), where the violation of section 800.04(02) is a second-degree felony, in order for the sexual predator designation to apply, the defendant must have a previous conviction with or without an adjudication of certain enumerated offenses. The State admits that Garcia does not have any prior convictions and that it was reversible error to designate him as a sexual predator. We reverse and remand to the trial court to remove the sexual predator designation. Reversed and remanded. SALCINES and STRINGER, JJ., Concur. -2-

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