Debose v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-0995

_____________________________

KADEEM CORDALE DEBOSE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Alachua County.

Mitchell D. Bishop, Judge.

December 11, 2024

PER CURIAM.

Kadeem Cordale Debose was convicted of unlawful sexual

activity with a minor under section 794.05, Florida Statutes, and

the unlawful use of a two-way communications device in

furtherance of a crime under section 934.215, Florida Statutes. We

affirm Debose’s judgment and sentence on all issues. We write to

briefly address Debose’s claim about venue. We also write to

explain why the court properly designated Debose a sexual

predator, despite the State’s concession of error. In doing so, we

certify conflict with the Fourth District Court of Appeal regarding

its decision in Montgomery v. State, 183 So. 3d 1042 (Fla. 4th DCA

2015).

I

Debose argues that his motion for judgment of acquittal for

the charge of unlawful use of a two-way communications device

should have been granted because the State failed to present

evidence supporting venue. More specifically, Debose argues that

because the State did not present evidence that he sent text

messages from Alachua County (where the trial occurred) venue

was not proven, and therefore his judgment of acquittal motion

should have been granted.

The concurring opinion suggests that we should reject

Debose’s argument because the question of whether the defendant

has been charged and tried in the correct venue should never be

answered by the jury. We are, however, constrained to reject this

suggestion because longstanding Florida Supreme Court cases

have indicated that venue is an appropriate question for the jury

and that a defendant may move for acquittal on the ground that

the State failed to prove proper venue. See, e.g., Hopkins v. State,

42 So. 52 (1906); McKinnie v. State, 32 So. 786 (Fla. 1902); Warrace

v. State, 8 So. 748 (Fla. 1891). But we agree that a question of great

public importance should be certified, so we join in certifying the

questions set out by our colleague in his concurring opinion.

That said, we find that this issue is resolved by section

910.15(1), Florida Statutes, which reads in pertinent part as

follows:

A person charged with committing a crime facilitated

by communication through use of . . . telephone . . . or

another means of electronic data communication may be

tried in the county in which the dissemination originated,

in which the dissemination was made, or in which any act

necessary to consummate the offense occurred.

Regardless of Debose’s location when he texted the victim, the

evidence showed that the victim was in Alachua County when she

received the communications from Debose. Because the

“dissemination” of the communication “was made” in Alachua

2

County, venue was proper there under section 910.15(1), and the

court did not err in denying the motion for judgment of acquittal. 1

II

At sentencing, the State offered Debose’s prior conviction in

Colorado to support designation as a sexual predator. Section

775.21(4)(a) requires an offender to be designated a sexual

predator upon conviction of certain crimes. Sub-subparagraph

(4)(a)1.b. requires designation if an offender is convicted of a

violation of section 794.05—like Debose—and has a previous

violation of one of several Florida laws, “or a violation of a similar

law of another jurisdiction[.]” The trial court found that the

previous Colorado conviction was similar to one of the enumerated

Florida offenses, and thus supported sexual predator designation.

Debose claims that the Colorado statute applies to more

conduct than the Florida statute. 2 Perhaps so. But even if true,

does that fact necessarily mean that a violation of the Colorado

statute is not “similar” to the corresponding Florida law such that

it cannot serve as a prior violation for purposes of the Sexual

Predators Act? Debose claims that it does, and that his conclusion

is supported by the decision in Montgomery. The State agrees, but

we do not.

1 Debose claims that Berry v. State, 306 So. 3d 1256 (Fla. 2d

DCA 2020), supports his argument. Berry does not discuss section

910.15, so we find it inapplicable.

2 Because “[t]he designation of a person as a sexual predator

is neither a sentence nor a punishment but simply a status

resulting from the conviction of certain crimes[,]” it is unclear

whether an alleged error in sexual predator designation is a

“sentencing error” that may be raised by motion under Florida

Rule of Criminal Procedure 3.800(b), as Debose did here.

§ 775.21(3)(d), Florida Statutes. However, the Supreme Court of

Florida has permitted challenges to sexual predator designation

by motion under Florida Rule of Criminal Procedure 3.800(a),

which requires an illegal sentence. See Saintelien v. State, 990 So.

2d 494 (Fla. 2008). Accordingly, we do not address this issue here.

3

A

When it enacted section 775.21, “The Florida Sexual

Predators Act,” in 1993, the Legislature found that “[t]he high level

of threat that a violent or repeat sex offender present[ed] to the

public safety . . . provide[d] the state with sufficient justification to

design and implement innovative mechanisms as part of a strategy

to achieve a significant reduction in the commission of violent and

repeat sex offenses[.]” Ch. 93-277, § 1, Laws of Fla.; see also

§ 775.21(3)(b), Fla. Stat. (same). The Act sets forth criteria

qualifying an offender for sexual predator status, which has gone

almost unaltered since its enactment. Compare ch. 93-277, Laws

of Fla. with § 775.21(4), Fla. Stat. (2022) (changing only the list of

enumerated crimes that trigger the designation). Here are those

criteria:

SEXUAL PREDATOR CRITERIA.—

(a) For a current offense committed on or after

October 1, 1993, upon conviction, an offender shall be

designated as a “sexual predator” under subsection (5),

and subject to registration under subsection (6) and

community and public notification under subsection (7) if:

1. The felony is:

....

b. Any felony violation, or any attempt thereof, of s.

393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.

787.025(2)(c), where the victim is a minor; s. 787.06(3)(b),

(d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding

s. 794.011(10); s. 794.05; former s. 796.03; former s.

796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s.

827.071; s. 847.0135, excluding s. 847.0135(6); s.

847.0145; s. 895.03, if the court makes a written finding

that the racketeering activity involved at least one sexual

offense listed in this sub-subparagraph or at least one

offense listed in this sub-subparagraph with sexual intent

or motive; s. 916.1075(2); or s. 985.701(1); or a violation

of a similar law of another jurisdiction, and the offender

has previously been convicted of or found to have

committed, or has pled nolo contendere or guilty to,

regardless of adjudication, any violation of s. 393.135(2);

s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c),

4

where the victim is a minor; s. 787.06(3)(b), (d), (f), or (g);

former s. 787.06(3)(h); s. 794.011, excluding s.

794.011(10); s. 794.05; former s. 796.03; former s.

796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s.

847.0135, excluding s. 847.0135(6); s. 847.0145; s. 895.03,

if the court makes a written finding that the racketeering

activity involved at least one sexual offense listed in this

sub-subparagraph or at least one offense listed in this

sub-subparagraph with sexual intent or motive; s.

916.1075(2); or s. 985.701(1); or a violation of a similar

law of another jurisdiction[.]

§ 775.21(4)(a), Fla. Stat. A defendant qualifies for sexual predator

status under sub-subparagraph (a)1.b. if he is convicted of an

enumerated offense and has a previous violation of an enumerated

offense. The previous violation may also involve “a similar law of

another jurisdiction.” Id. The meaning of that phrase is discussed

below.

As stated above, the previous offense here was Debose’s

conviction under section 18-3-405.3(1), Colorado Revised Statutes,

which reads as follows:

Any actor who knowingly subjects another not his or her

spouse to any sexual contact commits sexual assault on a

child by one in a position of trust if the victim is a child

less than eighteen years of age and the actor committing

the offense is one in a position of trust with respect to the

victim.

The State contended that the Colorado statute was “similar”

to section 794.011(8)(b) Florida Statutes, which reads as follows:

(8) Without regard to the willingness or consent of the

victim, which is not a defense to prosecution under this

subsection, a person who is in a position of familial or

custodial authority to a person less than 18 years of age

and who:

....

(b) Engages in any act with that person while the person

is 12 years of age or older but younger than 18 years of

5

age which constitutes sexual battery commits a felony of

the first degree[.]

Debose argues that “sexual contact” under the Colorado law is

broader than “act . . . which constitutes sexual battery” under the

Florida law. Debose likewise claims that “position of trust” is

broader than “position of familial or custodial authority.” Since a

possible scenario exists that would violate the Colorado statute but

not the Florida statute, Debose contends that the laws are not

“similar” for purposes of the Sexual Predators Act. We examine the

Sexual Predators Act to determine the proper scope of the term

“similar.”

The Sexual Predators Act itself sets forth the purpose and

intent of the statute, stated in full as follows:

LEGISLATIVE FINDINGS AND PURPOSE;

LEGISLATIVE INTENT.—

(a) Repeat sexual offenders, sexual offenders who

use physical violence, and sexual offenders who prey on

children are sexual predators who present an extreme

threat to the public safety. Sexual offenders are

extremely likely to use physical violence and to repeat

their offenses, and most sexual offenders commit many

offenses, have many more victims than are ever reported,

and are prosecuted for only a fraction of their crimes. This

makes the cost of sexual offender victimization to society

at large, while incalculable, clearly exorbitant.

(b) The high level of threat that a sexual predator

presents to the public safety, and the long-term effects

suffered by victims of sex offenses, provide the state with

sufficient justification to implement a strategy that

includes:

1. Incarcerating sexual predators and maintaining

adequate facilities to ensure that decisions to release

sexual predators into the community are not made on the

basis of inadequate space.

2. Providing for specialized supervision of sexual

predators who are in the community by specially trained

probation officers with low caseloads, as described in ss.

947.1405(7) and 948.30. The sexual predator is subject to

6

specified terms and conditions implemented at

sentencing or at the time of release from incarceration,

with a requirement that those who are financially able

must pay all or part of the costs of supervision.

3. Requiring the registration of sexual predators,

with a requirement that complete and accurate

information be maintained and accessible for use by law

enforcement authorities, communities, and the public.

4. Providing for community and public notification

concerning the presence of sexual predators.

5. Prohibiting sexual predators from working with

children, either for compensation or as a volunteer.

(c) The state has a compelling interest in protecting

the public from sexual predators and in protecting

children from predatory sexual activity, and there is

sufficient justification for requiring sexual predators to

register and for requiring community and public

notification of the presence of sexual predators.

(d) It is the purpose of the Legislature that, upon

the court’s written finding that an offender is a sexual

predator, in order to protect the public, it is necessary

that the sexual predator be registered with the

department and that members of the community and the

public be notified of the sexual predator’s presence. The

designation of a person as a sexual predator is neither a

sentence nor a punishment but simply a status resulting

from the conviction of certain crimes.

(e) It is the intent of the Legislature to address the

problem of sexual predators by:

1. Requiring sexual predators supervised in the

community to have special conditions of supervision and

to be supervised by probation officers with low caseloads;

2. Requiring sexual predators to register with the

Florida Department of Law Enforcement, as provided in

this section; and

3. Requiring community and public notification of

the presence of a sexual predator, as provided in this

section.

7

§ 775.21(3), Fla. Stat. It is against this background that we

consider how to apply the phrase “violation of a similar law of

another jurisdiction.”

“A textually permissible interpretation that furthers rather

than obstructs the document’s purpose should be favored.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 63 (2012). Given the identification in the Sexual

Predators Act of a “compelling interest in protecting the public

from sexual predators and in protecting children from predatory

sexual activity,” we strive to ensure that any interpretation of the

phrase “similar law of another jurisdiction” furthers the Act’s

stated purpose, rather than reading it so narrowly that we thwart

its purpose.

The purpose and intent section of the Sexual Predators Act

leads us to conclude that the phrase “violation of a similar law of

another jurisdiction” should not be read to exclude designation

merely because an out-of-state law defining a sex crime can

possibly be violated in a situation where a similar Florida statute

might not apply. The statute does not require the prohibited sex

crimes to be identical, just that they be “similar.” See Similar,

American Heritage Dictionary of the English Language (New

College ed. 1982) (“Showing some resemblance; related in

appearance or nature; alike though not identical.” (emphasis

supplied)); Similar, Webster’s Third New Int’l Dictionary of the

English Language: Unabridged (1981) (“[H]aving characteristics

in common[,] very much alike[,] comparable.” (emphasis

supplied)).

This view is consistent with State v. Brake, 796 So. 2d 522

(Fla. 2001), which concerned section 787.025(2)(c), Florida

Statutes (1997). That statute provided a certain penalty to a

person “who, having been previously convicted of a violation of

chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar

law of another jurisdiction,” performs a certain act. § 787.025(2)(c),

Fla. Stat. (emphasis supplied). The Supreme Court of Florida

wrote, “Brake was previously convicted of indecency with a child

in Texas, a crime which is similar to that proscribed under

Florida’s section 800.04.” Id. at 525 (emphasis supplied). The Court

did not engage in an elements test to determine whether the Texas

8

crime was an appropriate previous offense; instead, the Court

merely noted that the Texas law was “similar” to an enumerated

Florida law, just as the statute required. In fact, the crime of

“indecency with a child” in Texas can be committed when the

victim is sixteen years old, while the Florida crime identified in

section 800.04 requires that the victim be under sixteen. Compare

Texas Penal Code Ann. § 21.11 (West 1997) with § 800.04, Fla.

Stat. (1997). Despite the difference in the elements of the two

crimes, such that one could violate the Texas law when the act

would not violate the Florida law, the Supreme Court of Florida

still deemed the laws “similar” for the purposes of section

787.025(2)(c), Florida Statutes. Because the same language is used

in section 775.21(4)(a), we should reach the same result.

Accordingly, we find section 18-3-405.3(1), Colorado Revised

Statutes, is “similar” to section 794.011(8)(b), Florida Statutes, for

the purpose of designation as a sexual predator under section

775.021(4)(a), Florida Statutes.

B

1

Montgomery v. State

Debose argues that Montgomery supports his position that an

out-of-state crime cannot be “similar” to a Florida crime, for the

purpose of sexual predator designation, if the Florida crime is

“narrower in scope” than the out-of-state crime. 183 So. 2d at 1044.

We examine Montgomery below.

Montgomery is the only case that has addressed this topic

directly. In Montgomery, the Fourth District considered the

similarities of a Pennsylvania law to section 794.011(4)(b), Florida

Statutes, for the purpose of sexual predator qualification.

Montgomery, 183 So. 3d at 1044. The court determined that the

laws were “not similar,” and that “the Florida statute [was]

narrower in scope than the Pennsylvania statute.” Id.

Furthermore, the court “reject[ed] the State’s argument that the

trial court may look to the underlying facts of the qualifying

offense to establish whether two laws are similar.” Id. at 1045. The

court reached that conclusion by relying on two cases, Fike v. State,

9

63 So. 3d 847 (Fla. 5th DCA 2011) and Dautel v. State, 658 So. 2d

88 (Fla. 1995). See Montgomery, 183 So. 3d at 1045. We examine

those cases in the following sections.

Both the Pennsylvania statute at issue in Montgomery and the

purportedly “similar” Florida statute applied when the offender

coerced the victim into sexual activity. Compare 18 Pa. Stat. and

Cons. Stat. Ann. § 3121(a)(2) (defining rape in part as occurring

“when the person engages in sexual intercourse with a

complainant . . . [b]y threat of forcible compulsion that would

prevent resistance by a person of reasonable resolution”) with

§ 794.011(4)(b), (e)2., Fla. Stat. (defining sexual battery in part as

occurring when a person commits sexual battery and “[t]he

offender coerces the victim to submit by threatening to use force or

violence likely to cause serious personal injury on the victim, and

the victim reasonably believes that the offender has the present

ability to execute the threat”). The Montgomery court held that the

crimes were not “similar” because the coercion necessary to commit

the Pennsylvania offense was a lesser degree than the level of

coercion necessary for the Florida offense, and because the Florida

offense required the victim to have a reasonable belief in the

offender’s ability to execute the threat. Montgomery, 183 So. 3d at

1044.

But even if the court had been correct in concluding that this

thin distinction meant that the Pennsylvania crime was not

“similar” to section 794.011(4)(b), one may respond that it was

similar to the Florida sexual battery provision that does not

require any coercion (only lack of consent), that is, section

794.011(5)(b), Florida Statutes. The Montgomery court rejected

this conclusion, finding that the crime described by section

794.011(5)(b) was ineligible for sexual predator designation, based

on the following reasoning: “The [Florida offense requiring

coercion], which the trial court deemed similar to the Pennsylvania

statute, is a first degree felony that triggers the sexual predator

designation whereas the [Florida offense that does not require

coercion] is a second degree felony which does not.” Montgomery,

183 So. 3d at 1045.

This reasoning is incorrect. Section 775.21(4)(a)1.b., which is

set out in full above, establishes a list of offenses that can result in

10

sexual predator designation if the offender has at least one of the

enumerated prior violations. Nothing in section 775.21(4)(a)1.b.

indicates that only first-degree felonies can trigger sexual predator

designation. In fact, every crime defined in section 794.011 (except

one not relevant here) exposes an offender to sexual predator

designation, including the second-degree felony defined by section

794.011(5)(b). 3 Thus, even if the court had to conclude that the

Pennsylvania law was “similar” to section 794.011(5)(b), that

should have been enough for sexual predator designation.

But regardless of this oversight, the Montgomery court

concluded that an out-of-state law cannot be “similar” to Florida

law permitting sexual predator designation if the out-of-state law

possibly criminalizes any conduct that a corresponding Florida law

does not and explicitly rejected the contention that the court could

look to the facts of the prior out-of-state violation to determine

whether it was “similar” to a Florida crime. We turn now to Dautel

and Fike to examine whether those cases support that reasoning.

2

Dautel v. State

In Dautel the Supreme Court of Florida held that underlying

facts of a crime could not be utilized in determining whether an

out-of-state conviction was “parallel or analogous” to a Florida

crime to calculate a criminal scoresheet. See Dautel, 658 So. 2d at

89. Dautel was specifically addressing the language of Florida Rule

of Criminal Procedure 3.701(d)(5) and how it directs scoring for the

purpose of sentencing under the then-existing “Sentencing

Guidelines.” The Court highlighted that the notes accompanying

rule 3.701 suggested that “[a]ny uncertainty in the scoring of the

3 It is possible that the Montgomery court confused sub-

subparagraph a. of section 775.21(4)(a)1. with sub-subparagraph

b. Under sub-subparagraph a., violation of certain statutes that

constitute capital, life, or first-degree felonies qualifies for sexual

predator designation without any prior offense. If prior offense is

relevant, however, it is because sub-subparagraph b. applies,

which is not limited to first-degree felonies.

11

defendant’s prior record shall be resolved in favor of the

defendant.” Id. at 90.

But scoring out-of-state convictions for sentence calculation is

unlike determining whether an offender should be designated a

sexual predator. An examination of sentencing calculation laws

bears this out.

Under the old Sentencing Guidelines, used in Dautel, prior

offenses were assigned a point value based only on the degree of

the offense. See Fla. R. Crim. P. 3.988 (“Sentencing Guidelines

Scoresheet” listing “Prior Record”). Similarly, under the currently

used Criminal Punishment Code (CPC), prior offenses are

assigned a point value based on the specific statute under which

the offender was convicted. See § 921.0022(3), Fla. Stat. (listing

offense levels for the “Offense Severity Ranking Chart”); Fla. R.

Crim. P. 3.704(c)(1) (noting the offense severity ranking chart

assigns a level to each offense according to the severity of the

offense, “commensurate with the harm or potential for harm to the

community that is caused by the offense, as determined by statute.”

(emphasis supplied)). 4 As with the old Sentencing Guidelines, the

facts of a prior offense are irrelevant to the CPC scoresheet

calculation. See Allen v. State, 916 So. 2d 67, 67 (Fla. 4th DCA

2005) (holding that “[d]etermining which Florida crime is

analogous to the out of state conviction requires a comparison of

the elements of the crimes[]”).

Given these factors, it makes sense that only the elements of

a statute identifying the offense, rather than any underlying facts,

4 Under the Sentencing Guidelines, the points assigned for the

offenses at conviction, prior offenses, and other factors, were used

to calculate a permissible and required sentencing range. See Fla.

R. Crim. P. 3.701(d)(8). Under the CPC, the assigned points are

used to calculate the lowest permissible sentence. See

§ 921.0024(2), Fla. Stat. (defining “lowest permissible sentence”

and specifying how to determine that figure); see also Fla. R. Crim.

P. 3.704(d)(26) (same). Despite this difference, in both instances, a

point value is assigned to prior offenses based solely on the statute

violated.

12

are relevant when scoring a defendant’s prior record for

sentencing. The statute alone provides the relevant data.

Likewise, it makes sense to exclude out-of-state offenses that are

not identical to a Florida offense, for the same reason. More

generally, Dautel involved sentencing, which carries constitutional

considerations that are not present in the context of the Sexual

Predators Act. See State v. McKenzie, 331 So. 3d 666, 673 (Fla.

2021) (“The imposition of sexual predator status under section

775.21 is related to the underlying criminal offense—but is not

itself a sentence or punishment.” (emphasis supplied)). These facts,

combined with the requirement noted by the Dautel court that any

doubts in scoring were to be resolved in the defendant’s favor, 5 give

Dautel limited applicability to the Sexual Predators Act. Unlike

the sentencing rules, the Sexual Predators Act does not require an

interpretative presumption in favor of the defendant, which would

be inconsistent with the priority that section 775.21(3) puts on the

safety of potential victims.

3

Fike v. State

In Fike, the court was confronted with the issue here but

stopped short of reaching an answer. See Fike, 63 So. 3d at 849

(noting that “[w]hat constitutes a ‘violation of a similar law of

another jurisdiction’ has not been addressed in the context of

sexual predator designation,” but finding it unnecessary to do so).

The court rejected the proposition that cases such as Dautel were

binding “because being designated a sexual predator does not

implicate the same considerations or concerns involved in

sentencing” noting that “[s]exual predator designation is not a

punishment, only a status.” Id.; see also § 775.21(3)(d), Fla. Stat.

(“[T]he designation of a person as a sexual predator is neither a

sentence nor a punishment but simply a status resulting from the

conviction of certain crimes.”). Nonetheless, the court ruled that it

did not have to explore the meaning of the phrase “violation of a

5 The restriction still applies to scoring under the CPC. See

Fla. R. Crim. P. 3.704(d)(14)(D) (“Any uncertainty in the scoring of

the offender’s prior record must be resolved in favor of the

offender[.]”).

13

similar law of another jurisdiction” because the prior Michigan

conviction did “not qualify [Fike] for sexual predator designation.”

Fike, 63 So. 3d at 849.

The Fike court was correct in concluding that Dautel was

inapplicable in the sexual predator context. But it was also correct

in rejecting the State’s assertion that the Michigan law was not

“similar” to section 800.04, Florida Statutes for purposes of the

Sexual Predators Act.

The Michigan law at issue in Fike prohibited “[a]ssault with

intent to commit criminal sexual conduct involving sexual

penetration.” Mich. Comp. Laws Ann. § 750.520g(1). 6 It is unclear

whether there is a Florida counterpart to this crime. The State in

Fike argued that the lewd and lascivious offenses in section 800.04

were similar to the Michigan law, but the crimes under that

statute involve sexual acts upon persons under sixteen years old

where consent is irrelevant, neither of which is an element of the

Michigan crime. 7

Because Dautel involves scoring out-of-state convictions for

sentencing determination, and because Fike involved an out-of-

state offense without an identified Florida counterpart, the

Montgomery court should have relied on neither case to invalidate

sexual predator designation. In fact, the Sexual Predators Act does

6 “[T]he elements of assault with intent to commit [criminal

sexual conduct] involving penetration are simply (1) an assault,

and (2) an intent to commit [criminal sexual conduct] involving

sexual penetration.” People v. Nickens, 685 N.W.2d 657, 661 (Mich.

2004). “An assault may be established by showing that one has

attempted an intentional, unconsented, and harmful or offensive

touching of a person.” People v. Starks, 701 N.W.2d 136, 138 (Mich.

2005).

7 Because the Fike court did not address it, we do not consider

whether the Michigan crime of assault with intent to commit

criminal sexual conduct involving penetration is “similar” to

attempted sexual battery prohibited by sections 777.04 and

794.011(5), Florida Statutes.

14

not support this narrow interpretation of the phrase “violation of

a similar law of another jurisdiction.”

C

As stated, the Montgomery court held that a statute

prohibiting sexual intercourse “by threat of forcible compulsion”

was not similar to a Florida statute prohibiting sexual battery

when the offender “coerces the victim to submit by threatening to

use force or violence likely to cause serious personal injury on the

victim.” 183 So. 3d at 1044. Both crimes prohibit sexual acts

accomplished by coercing the victim to submit under threat of

violence. Refusing to call these crimes “similar” defies logic and is

contrary to the stated purposes of the Sexual Predators Act.

Montgomery committed the type of crime that should qualify one

for sexual predator designation in Florida, regardless of any slight

distinctions in the applicable Pennsylvania and Florida laws. The

fact that the level of coercion necessary to commit each crime may

be slightly different, such that one could conceive of a situation

that violates one statute but not the other, does not alter this basic

fact.

The same is true in Debose’s case. Both the Colorado statute

and the Florida statute criminalize sexual activity when the

offender is in a position of authority over a minor victim. The

Colorado statute might encompass sexual acts not specifically

included in the corresponding Florida statute, or might include

situations where an offender’s authority over the victim is not

characterized exactly the same way, but these distinctions do not

alter this basic fact. To claim otherwise would “thwart the purpose

of the statute expressly stated in section 775.21(3)(d).” McKenzie,

331 So. 3d at 674 (Fla. 2021) (Couriel, J., concurring). The Sexual

Predators Act is meant to apply to offenders who have committed

a sex crime (especially a sex crime against minors) in a foreign

jurisdiction, regardless of whether the sex crime is identical to a

Florida sex crime, as long as it is “similar” to one. The crimes here

are plainly “similar.”

In reaching this conclusion, we do not hold that the court may

resort to the facts of the underlying case to determine whether an

out-of-state violation qualifies a defendant for designation. Such a

15

conclusion may be supported by the statute’s focus on the fact that

the offender “committed” a “violation” of the out-of-state law,

rather than the mere fact of conviction, which is the case for

sentencing. The Legislature, in directing whether a certain prior

conviction requires a certain result, is capable of ensuring that the

determination is based on the elements of the offense alone. See,

e.g., § 794.0115(2)(e), Fla. Stat. (stating an out-of-state prior

conviction can qualify a defendant as a “dangerous sexual felony

offender” if the out-of-state conviction is “similar in elements” to

an enumerated Florida crime). But such a conclusion is

unnecessary in light of the requirement that the offender violate

only a “similar law”; the court need not determine whether the

actual violation would necessarily fit precisely under a

corresponding Florida statute.

Thus, we disagree with the Fourth District’s rationale and

holding in Montgomery and certify conflict.

III

Debose also argues that the trial court improperly scored the

Colorado conviction on his CPC scoresheet, because section 18-3-

405.3(1), Colorado Revised Statutes, is not “analogous or parallel”

to section 794.011(8)(b), Florida Statutes. See Fla. R. Crim. P.

3.704(d)(14). As stated above, this question involves a different

analysis than whether the Colorado statute qualifies for sexual

predator designation. For purposes of scoring for sentence

calculation, the Colorado crime is not “analogous or parallel” to the

Florida crime, as explained above.

Because the trial court found that the Colorado crime was

analogous or parallel to the crime identified in section

794.011(8)(b), it scored the Colorado crime at Level 9, which

yielded 23 sentence points. See § 921.0024(1)(a), Fla. Stat. While

the exclusion of these points would have resulted in a lower lowest

permissible sentence than the one used in Debose’s sentencing, the

trial court explicitly ruled that it “would have imposed the same

sentence regardless of how [his] prior conviction for a sex offense

against a minor was calculated,” noting that Debose “was a

registered sex offender for an offense against a minor at the time

of his offense.” The trial court also did not sentence Debose to the

16

lowest permissible sentence. Rather, it sentenced him to twenty

years in prison—well beyond the seven-and-a-half years Debose

scored. These facts alone render the scoresheet error harmless. See

State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005) (holding that a

scoresheet error is harmless if “the record conclusively shows that

the same sentence would have been imposed using a correct

scoresheet[]”).

IV

We affirm Debose’s conviction and sentence. We further hold

that the trial court did not err in concluding that Debose’s Colorado

conviction was a qualifying previous violation for the purposes of

section 775.21(4)(a)1.b., and in designating him a sexual predator

under section 775.21, Florida Statutes. In doing so, we certify

conflict with the Fouth District Court of Appeal regarding its

decision in Montgomery.

AFFIRMED, CONFLICT CERTIFIED, QUESTIONS CERTIFIED.

ROBERTS and NORDBY, JJ., concur; WINOKUR, J., concurs with

opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

WINOKUR, J., concurring.

I agree with the majority that we should affirm Debose’s

judgment and sentence and that we should certify conflict with the

Fourth District Court of Appeal. I write separately to address

Debose’s argument that the trial court erred in denying his motion

for judgment of acquittal on the count of unlawful use of a two-way

communications device in furtherance of a crime because the State

failed to present evidence that he committed the crime in the venue

where he was charged and tried. Because the State failed to

present evidence of proper venue, Debose claims that his

17

conviction on that count must be vacated, and that retrial is

impermissible, because venue is “an element of the offense.” See,

e.g., Johnson v. State, 177 So. 3d 1005, 1009 (Fla. 1st DCA 2015)

(“Venue is an essential element of a crime.” (citing Mosley v. State,

842 So. 2d 855, 857 (Fla. 1st DCA 2002))).

Regardless of whether the State adequately proved venue, I

have fundamental objections to this argument. In explaining why,

I raise practical issues that occur when a jury is required to

determine whether the State has proved venue, issues that

demonstrate essential contradictions that call into question the

entire concept of making venue a jury issue. Second, I argue that

an analysis of the constitutional right to trial before a jury in the

county where the crime was committed leads to the conclusion that

venue is a question of law for the court and should never be

brought before the jury as a question of fact at all.

I

A

A criminal defendant has the right to a “speedy and public

trial by [an] impartial jury in the county where the crime was

committed.” Art. I, § 16, Fla. Const. That constitutional provision

mirrors the venue and vicinage clauses of the U.S. Constitution.

See Art. III, § 2, cl. 3, U.S. Const. (“Trial of all Crimes . . . shall be

held in the State where the . . . Crimes shall have been

committed.”); Amend. VI, U.S. Const. (“In all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein

the crime shall have been committed[.]”). 1

This constitutional right has been a part of our Constitution

since at least 1885. See Declaration of Rights, § 11, Fla. Const.

(1885). That provision remains unchanged. See Art. I, § 16, Fla.

Const. (2018). The Legislature codified the venue requirement in

1 The Vicinage Clause of the United States Constitution

“concerns jury composition” whereas the Venue Clause concerns

“the place where a trial may be held.” Smith v. United States, 599

U.S. 236, 245 (2023).

18

1939. Ch. 19554, §§ 160–69, Laws of Fla. (1939). The venue

statutes are currently in Chapter 910. See § 910.03(1), Fla. Stat.

(“[C]riminal prosecutions shall be tried in the county where the

offense was committed[.]”). The Supreme Court of Florida later

adopted a standard jury instruction regarding venue, which

currently reads, “[t]he State must prove by a preponderance of the

evidence that the alleged crime[s] [was] [were] committed [in this

county] [within the areas of the counties named in the charge[s]].”

See Fla. Std. Jury Instr. (Crim.) 3.8(e). The standard instruction

adds the following comment: “This charge should be given only

when the defendant requests it and there is an issue of fact in the

evidence for the jury to resolve.” Id.

B

The central question driving this opinion is whether venue is

an element, or “essential element,” of any offense. An “essential

element” has been defined as “a required and necessary element of

crime as set forth by the particular substantive criminal statute.”

State v. Tinsley, 683 So. 2d 1089, 1090 (Fla. 5th DCA 1996)

(emphasis supplied); see also Mathis v. United States, 579 U.S. 500,

504 (2016) (“‘Elements’ are the ‘constituent parts’ of a crime’s legal

definition—the things that the ‘prosecution must prove to sustain

a conviction.’” (quoting Black’s Law Dictionary 634 (10th ed.

2014))). “Element” is similarly defined in the Standard Jury

Instructions, which identifies the facts constituting a crime, as set

forth in statute, that the State must prove in order to secure a

conviction. See Fla. Std. Jury Instr. (Crim.), Part 2. For instance,

one of the crimes of which Debose was convicted, Unlawful Sexual

Activity with Certain Minors, is set forth in the Standard Jury

Instructions as follows:

To prove the crime of Unlawful Sexual Activity with a

Certain Minors, the State must prove the following three

elements beyond a reasonable doubt:

1. (Defendant) engaged in sexual activity with (victim).

2. At the time, (defendant) was 24 years of age or older.

3. At the time, (victim) was 16 or 17 years of age.

19

Fla. Std. Jury Instr. (Crim.) 11.7. (emphasis supplied). These

elements are drawn directly from section 794.05, Florida Statutes.

The failure of the State to offer evidence supporting each

element means that the court must grant a defendant’s motion for

judgment of acquittal. See, e.g., Baugh v. State, 961 So. 2d 198,

203–04 (Fla. 2007) (“[T]he prosecution, in order to present a prima

facie case, is required to prove each and every element of the

offense charged beyond a reasonable doubt, and when the

prosecution fails to meet this burden, the case should not be

submitted to the jury, and a judgment of acquittal should be

granted.” (quoting Williams v. State, 560 So. 2d 1304, 1306 (Fla.

1st DCA 1990))).

Under this common-sense approach, venue cannot be an

“element” of a crime, as it is not a constituent part of the definition

of a substantive crime. Nonetheless, the district courts of appeal

are indeed split on the issue of whether venue is an element.

Compare Johnson, 177 So. 3d at 1009 (“Venue is an essential

element of a crime.” (citation omitted)); with McClellion v. State,

858 So. 2d 379, 381 (Fla. 4th DCA 2003) (“Venue is not an element

of the charged crime[.]” (emphasis supplied)); Berry v. State, 306

So. 3d 1256, 1259 (Fla. 2d DCA 2020) (same).

Johnson cites Mosley v. State, 842 So. 2d 855, 857 (Fla. 1st

DCA 2002), for this proposition, which in turn cites Tucker v. State,

459 So. 2d 306 (Fla. 1984), which itself cites (and partially

overrules) State v. Black, 385 So. 2d 1372 (Fla. 1980). Indeed,

Black does state that “[v]enue is an essential element in any

criminal charge.” 385 So. 2d at 1375. Yet the court gives no

analysis for this proposition and cites only the constitutional

provision for venue noted above. Id. This constitutional provision

says nothing about whether venue is an “element” of a crime; it

simply establishes a right to be tried in the county where the crime

was allegedly committed. In any event, the Black court was

addressing whether venue had to be charged in an information or

indictment, not whether venue was a constituent part of an offense

that the State must prove at trial. There is in fact no reason set

forth in Florida law why venue should be considered an element of

an offense in the same manner as the statutory facts of a crime

that the State must prove to secure a conviction.

20

One more word about identification of venue as an “element”

of an offense. The Standard Jury Instructions note that the venue

instruction “should be given only when the defendant requests it

and there is an issue of fact for the jury to resolve.” Fla. Std. Jury

Instr. (Crim.) 3.8(e). This comment seems to stem from the ruling

in Lane v. State, that the defendant may waive venue. 388 So. 2d

1022, 1026 (Fla. 1980). But placing upon the defendant an

affirmative obligation to request that the State be required to

prove venue at trial is inconsistent with identifying venue as an

“element,” since the State bears an affirmative duty to prove every

element of the offense at trial. See, e.g., Hill v. State, 980 So. 2d

1195, 1199 (Fla. 3d DCA 2008) (“It is well established that the

State has the burden of proving every element of a crime beyond a

reasonable doubt and this burden never shifts from the State.”

(citation omitted)). Again, it seems erroneous to identify venue as

an “element” of every criminal offense.

C

Identification of venue as an element leads to other practical

problems. First, the level of proof necessary to prove venue is

unclear. The court in Berry ruled that venue “need only be proven

by a preponderance of the evidence.” 306 So. 3d at 1259; see also

Monroe v. State, 14 So. 3d 1205, 1209 (Fla. 4th DCA 2009); Fla.

Std. Jury Instr. (Crim.) 3.8(e). For its part, the court in McClellion

described the level of proof necessary as whether the jury could

“reasonably infer from the evidence that the crime was committed

in the county in which the defendant was charged.” 858 So. 2d at

381. In fact, the court in McClellion went on to state that venue is

not an element of an offense specifically because it need not be

proven beyond a reasonable doubt. 858 So. 2d at 381 n.1.

Accordingly, it is unclear whether those courts that have ruled that

venue is an element would hold that venue must be proven beyond

a reasonable doubt.

But even if the State need not prove venue beyond a

reasonable doubt, how exactly is the jury supposed to decide

venue? Should the jury decide venue as a preliminary matter, only

proceeding to the substantive crime (with a different standard of

proof) once it decides that venue has been proved by a

preponderance of evidence? Should the jury be provided a verdict

21

form that directs it to distinguish between a venue finding and a

finding on the substantive crime? How do we know whether a jury

has found only that the State failed to prove venue? And most

importantly, if the jury finds that the State has failed to prove

venue, what is the remedy? The identification of the proper remedy

brings me to the final issue I see with the way that venue is proved

in a Florida prosecution.

D

In this case, Debose moved for judgment of acquittal on the

use of a communications device count based on his contention that

the State failed to present sufficient evidence that the crime

occurred in Alachua County. 2 Debose suggests that a finding of

lack of venue by the jury (employing, presumably, the

preponderance of evidence standard) would result in an acquittal.

This result is inconsistent with the purpose of an acquittal. An

acquittal has double jeopardy implications because the

constitutional prohibition against double jeopardy “protects

against a second prosecution for the same offense after acquittal.”

Carlson v. State, 405 So. 2d 173, 175 (Fla. 1981) (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Conversely, it

appears that the correct remedy for failure to prove venue is

retrial. See, e.g., Smith, 599 U.S. at 253–54 (noting that reversal

of a conviction based on a violation of the Venue or Vicinage

Clauses, even when styled as a judgment of acquittal, does not

resolve the question of criminal culpability, and that as such

retrial is permissible). Even in Johnson, in which we ruled that

venue was an essential element of the crime and that the State

failed to prove it, we remanded the case for retrial. 177 So. 3d at

1009; see also Berry, 306 So. 3d at 1260 (remanding for retrial after

finding that the State failed to present evidence of venue).

2 Debose specifically requested a special instruction regarding

venue, but never requested the general jury instruction indicated

in the standard instructions. See Fla. Std. Jury. Instr. (Crim.)

3.8(e).

22

And yet, if the jury found that the State failed to prove proper

venue, presumably it would acquit the defendant.

In short, submitting the question of venue to the jury raises

several inconsistencies and errors. I submit that these

inconsistencies result from the failure of Florida courts to

recognize that the constitutional right to proper venue is simply a

procedural safeguard to protect the accused’s right to an impartial

jury where the crime occurred, not a part of the crime that the jury

itself must decide. To this end, I submit that a trial court should

decide whether venue is proper prior to trial, just like it does with

regard to other, related procedural rights.

II

It is firmly established in Florida law that a question of venue

must be submitted to the jury. All of the cases, even very old ones,

take this rule for granted rather than analyzing whether it is

appropriate. See, e.g., Hopkins v. State, 42 So. 52 (1906); McKinnie

v. State, 32 So. 786 (Fla. 1902); Warrace v. State, 8 So. 748 (Fla.

1891). Consider Croft v. State, 191 So. 34 (1939) as an example of

how the question has usually been addressed. In Croft, one of the

questions presented to the court was “[i]n a larceny prosecution is

it essential to a valid conviction that the state prove venue?” 191

So. at 34. The court’s entire analysis was that the question “must

be answered in the affirmative” and that “[i]nspection of the record

discloses that the State met the burden suggested by [the]

question.” Id. The court included no citations in its “analysis.”

Indeed, while the state constitution plainly specifies that a

defendant has a right to a trial by an impartial jury in the county

where the crime was committed, I can find no constitutional

provision, statute, rule, or case, that explains why the question of

venue must be presented to and decided by a jury. I conclude that

such a rule of law is incorrect.

Rather than belabor this position, I will simply point to People

v. Posey, 82 P.3d 755 (Cal. 2004), a case in which the Supreme

Court of California concluded that venue is a legal question for the

court, rather than a factual question for the jury:

The rule that venue is a question of fact for the jury is

unsound for a number of fundamental reasons. First, the

23

rule impedes the purposes underlying the venue

provisions, especially their principal purpose from a

defendant’s perspective of protecting a defendant from

being required to stand trial in a distant and unduly

burdensome locale, by putting off any finding on venue

until after the defendant has been required to undergo

the rigors and hardship of standing trial in an assertedly

improper locale, and after the state has incurred the time

and expense of conducting a trial there. Second, the rule

is inconsistent with contemporary treatment of other,

analogous issues, inasmuch as venue is a procedural

question involving the appropriateness of a place for a

defendant’s trial on a criminal charge, and not a

substantive question relating to the defendant’s guilt or

innocence of the crime charged. Third, the rule threatens

the untoward consequence of an “unwarranted acquittal”

when the jury returns a verdict of not guilty predicated

solely on lack of proper venue.

Id. at 759. (citations and quotations omitted). I agree.

The question, according to the Posey court,

turns on whether the issue presented relates to the

substantive matter of guilt or innocence to be determined

at trial or, instead, concerns a procedural matter that

does not itself determine guilt or innocence but either

precedes the trial (such as whether to change venue),

affects the conduct of the trial (such as whether to admit

certain evidence), or follows the trial (such as whether to

order a new trial).

Id. at 763 (citation omitted). “If an issue implicates guilt or

innocence as a substantive matter, it generally lies within the

province of the jury, but an issue involving a procedural matter

generally lies within the province of the court.” Id. Under this

standard, the Posey court concluded that venue was a question of

law for the court.

Similarly, under Florida law, note that the constitutional

provision providing a right to trial in the county where the crime

occurred also guarantees a “speedy and public trial.” Art. I, § 16(a),

24

Fla. Const. Questions involving the right to a speedy trial are

never decided by the jury; such an issue is always decided by the

court. See Landry v. State, 666 So. 2d 121, 125–26 (Fla. 1995)

(discussing a trial court’s duty to determine whether a speedy trial

violation has occurred). The same is true of a right to public trial.

See Bundy v. State, 455 So. 2d 330 (Fla. 1984). I see no compelling

reason why a different procedural right contained in the very same

constitutional clause should be a question for the jury.

One other inherent contradiction in making venue a jury

question was exposed by the Posey court. That is, if the State has

violated a defendant’s constitutional rights by trying him in the

wrong county, then a jury composed of citizens from the wrong

county is vested with the responsibility of deciding whether it is

the right jury to try the defendant. See Posey, 82 P.3d at 559. This

seems to violate the very notion of a constitutional right to trial by

a jury in the county where the crime occurred.

I believe the Posey court’s analysis is correct. Not only is venue

an appropriate question for the court rather than the jury, but the

significant issues identified above demonstrate serious problems

with allowing this issue to be decided by a jury. I believe this issue

is significant enough to certify questions of great public

importance to the Supreme Court of Florida. If the Court were to

find that venue is a proper question for the jury, I believe it should

clarify the jury’s responsibility on the question, as indicated above.

I propose the following questions.

SHOULD THE QUESTION OF WHETHER THE STATE HAS PROVEN

THAT VENUE WAS PROPER IN THE COUNTY WHERE TRIAL OCCURS BE

ANSWERED BY THE JURY? IF SO, SHOULD THE JURY BE INSTRUCTED

THAT IT SHOULD NOT CONSIDER WHETHER THE STATE HAS PROVEN

THE DEFENDANT’S GUILT IF IT FINDS THAT THE STATE HAS NOT

PROVEN PROPER VENUE?

25

_____________________________

Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert “Charlie” Lee,

Assistant Attorney General, Tallahassee, for Appellee.

26